IN THE CASE OF:	  

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130010444 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests adjustment of his date of rank (DOR) for chief warrant officer 2 (CW2). 

2.  He states his DOR for warrant officer one (WO1) is 5 October 2010.  New regulatory guidance states the Federal recognition (FEDREC) effective date is supposed to be the date State orders are published for promotion to CW2.  Since he was "on the scroll when this regulation was passed," he believes his DOR should be the date of the State orders promoting him to CW2.

3.  He provides:

* Adjutant General's Department, State of Ohio, Orders 251-901, dated 7 September 2012
* National Guard Bureau (NGB), Special Orders Number 12 AR, dated 11 January 2013

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Ohio Army National Guard (OHARNG), on 5 October 2010, the applicant took the oaths of office as a WO1 in the OHARNG.

2.  On 27 July 2011, NGB issued Special Orders Number 170 AR extending him FEDREC as a WO1 effective 5 October 2010, the date of his initial appointment.

3.  On 7 September 2012, the Adjutant General's Department, State of Ohio, issued Orders 251-901 promoting him to CW2 effective 5 October 2012.

4.  On 11 January 2013, the NGB issued Special Orders Number 12 AR extending him FEDREC as a CW2 effective 9 January 2013.  

5.  On 26 September 2013, during the processing of this case, the Chief, Personnel Policy Division, NGB, provided an advisory opinion.  The advisory official noted the applicant's contentions and recommended disapproval of his request.  

	a.  The advisory official stated that, under new guidance, the applicant's claim would be valid; however, the new guidance does not retroactively apply to him.  ARNG Human Resources Personnel Policy Memorandum (PPOM) Number 13-006, dated 6 February 2013, subject:  Promotion from Second Lieutenant to First Lieutenant and from WO1 to CW2, states its purpose is to implement provisions of the 2013 National Defense Authorization Act (NDAA) that removed the requirement for a FEDREC Board for promotion to CW2.

	b.  The applicant's promotion to CW2 was governed by policy that the date FEDREC is extended is both the DOR and promotion effective date.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states a warrant officer's DOR will be used to establish the promotion eligibility date to the next grade.  Warrant officers still must go through the FEDREC process and the promotion effective date is when the scroll is signed.

	c.  A WO1 is eligible for promotion with 2 years of time in grade, but that does not mean automatic promotion.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Action) states promotions will be based on a variety of factors considered by a FEDREC Board.

	d.  The NGB FEDREC section initially received and reviewed the applicant's promotion packet on 7 September 2012, but returned the packet to the State for corrections.  The FEDREC section received the corrected packet on 3 October 2012 and accepted it for further processing.  The packet was forwarded and processed for scrolling on 15 November 2012.  The applicant was placed on a scroll that was signed by the Secretary of Defense on 9 January 2013.  

	e.  The scrolling process takes approximately 120 days from the date the promotion packet is received by NGB.  There is no evidence of injustice or error in the applicant's case.
6.  The applicant was provided a copy of the advisory opinion for comment and/or rebuttal.  He did not respond within the time allotted.

7.  NGB Policy Memorandum 11-015, subject: Federal Recognition of WOs in the ARNG, dated 14 June 2011, states that ARNG WOs are initially appointed and are also promoted by the State or Territory to which the officer is assigned.  The Chief, NGB, reviews and approves those actions.

8.  Title 10, U.S. Code, sections 571b and 12241b introduced a requirement that all WO appointments and promotions to chief WO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WOs and promotion to higher grades, by warrant or commission, will be issued by the President (delegated to the Secretary of Defense).  Requests for appointment will be staffed through the Department of the Army, Deputy Chief of Staff, G-1.  This requirement may add 90 days or more to the process for approval for appointments or promotions to be completed.

9.  The 2013 NDAA, signed by the President on 2 January 2013, provides, in part, that FEDREC is automatically extended to an officer in the grade of CW2 effective as of the date on which the officer has completed the service in the next lower grade prescribed by the Secretary concerned.  

10.  Army Regulation 135-155 states the DOR is the date the officer actually or constructively was appointed or promoted to a specific grade.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for adjustment of his DOR for CW2.

2.  Although the applicant contends that, under new policy, his FEDREC date would be the date the State promoted him, this is not the case.  A change in law requires automatic extension of FEDREC as a CW2 when an officer has completed sufficient service as a WO1.  The law simply relieves the States of having to conduct FEDREC Boards for junior warrant officers whose promotions are largely based on time served in the next lower grade.  The new law did not change the fact that promotion to a higher warrant officer grade may only be accomplished under promotion authority the President has delegated to the Secretary of Defense.  

3.  The applicant was subject to the same process as all other warrant officers serving under similar circumstances.  There is no evidence of error, inequity, or injustice in the effective date of his promotion to CW2.  The only way that the date the applicant was granted FEDREC to CW2 could be changed would be to show the Secretary of Defense approved his promotion on an earlier date.  Doing so would also affect his DOR; however, the ABCMR has no jurisdiction over Department of Defense records and cannot make that type of correction.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ______________X__________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130010444





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ABCMR Record of Proceedings (cont)                                         AR20130010444



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