IN THE CASE OF:	  

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130012973 


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) and effective date of promotion to chief warrant officer two (CW2) from 25 September 2012 to 3 March 2011, the day after the date he completed the Warrant Officer Basic Course (WOBC).

2.  The applicant states, in effect, that:

	a.  In accordance with National Guard Regulation 600-101 (Warrant Officers - Federal Regulation and Related Personnel Actions) and National Guard Bureau (NGB) Policy Memorandum Number 07-026 (Policy to Appoint Sergeant First Class (SFC) to CW2), dated 14 August 2007), which provided that SFCs/E-7s who have served a minimum of 2 years as an SFC/E-7 are eligible for promotion to CW2 upon completion of the Warrant Officer Candidate School (WOCS) and WOBC.

	b.  He completed WOBC on 2 March 2011 and was eligible for promotion to CW2 the following day.

	c.  Because of administrative issues with the District of Columbia Army National Guard (DCARNG), his promotion was not processed until 8 May 2013.

3.  The applicant provides:

* 2 DA Forms 1059 (Service School Academic Evaluation Report)
* NGB appointment memorandum
* Federal recognition orders for promotion to CW2

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army, the applicant enlisted in the ARNG on 24 September 2003.  He was promoted to SFC/E-7 on 10 October 2006.

2.  His effective date for promotion to SFC/E-7 was 9 August 2006.  He completed the Warrant Officer Candidate Course and was initially appointed to warrant officer one (WO1) effective 25 September 2010.

3.  His record contains and he also provides a DA Form 1059, dated 2 March 2011, which shows he completed WOBC on 2 March 2011.

4.  Joint Force Headquarters, DCARNG, Orders 057-036, dated 26 February 2013, promoted him to CW2 with a DOR and effective date of promotion of 25 September 2012.

5.  NGB Special Orders Number 117 AR, dated 8 May 2013, extended him permanent Federal recognition for promotion to the grade of CW2 effective 25 September 2012.

6.  NGB Promotion Memorandum, dated 8 May 2013, shows the applicant was promoted to CW2 with a DOR and effective date of promotion of 25 September 2012.

7.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommends denial of the applicant's based upon the following reasons.

	a.  The applicant's request is based upon NGB-AHR Policy Memorandum Number 07-026, which allows States to appoint SFC to CW2 upon completion of WOBC.  In this instance, the 2011 National Defense Authorization Act (NDAA) was implemented effective 7 January 2011.  This law supersedes NGB Policy Memorandum Number 07-026, thus the applicant's promotion packet had to go through the scrolling process.

	b.  The applicant's Federal Recognition date for promotion to CW2 cannot be modified because that would effectively amend the Secretary of Defense's action, which is beyond the authority of the Army Board for Correction of Military Records (ABCMR).  Warrant officers still must go through the Federal recognition process and the promotion effective date is when the scroll is signed.  NGB Policy Memorandum Number 07-026 cannot be used to supersede the Rederal recognition requirement that existed at the time that the applicant was eligible for promotion.

	c.  National Guard Regulation 600-101, paragraph 7-2, states, "Promotions will be based on:  Department of the Army proponent duty Military Occupational Specialty certification via satisfactory completion or constructive credit of appropriate level of military education; time in grade; demonstrated technical and tactical competence; and potential for service in the next higher grade as determined by a Federal Recognition Board.

	d.  Neither the DOR or the promotion effective date can be changed in this case.  The applicant's promotion to CW2 is governed by the regulatory requirement that the date Federal recognition is extended, is both the DOR and promotion effective date.  NGB Warrant Officer Policy Branch confirms this guidance is supported by Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers, dated 13 July 2004), paragraph 4-17b(1), which states, "A warrant officer's DOR will be used to establish the promotion eligibility date to the next grade."

8.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He did not respond.

9.  NGB Policy Memorandum Number 07-026, dated 14 August 2007, subject:  Policy to Appoint SFC to CW2, provides that States are authorized to appoint SFCs/E-7s to the grade of CW2 effective the date of the memorandum if an SFC has served a minimum of 2 consecutive years as an SFC/E-7 and an SFC/E-7 who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC.

10.  ARNG Policy Memorandum Number 11-105, dated 14 June 2011, pertains to Federal recognition of warrant officer appointments in the ARNG.  This memorandum states all initial appointments of warrant officers and appointments in a higher grade (promotion) by warrant or commission will be issued by the President effective 7 January 2011.

11.  An ARNG information paper, dated 22 July 2011, subject:  NDAA 2011 Changes to Warrant Officer Federal Recognition Process, states:
	a.  Prior to 7 January 2011, all warrant officer Federal recognition appointments and promotions were approved by the Secretary of the Army.  The Secretary of the Army delegated this authority to the Director, NGB, and NGB published all Federal recognition orders for warrant officers.

	b.  On 7 January 2011, NDAA 2011 was signed and a new requirement was created that all warrant officer appointments and promotions would have to be signed by the President.  This new requirement removed NGB authority to approve and publish all warrant officer Federal recognition orders.  All warrant officer appointments and promotions are now required to be placed on a scroll and processed through various channels from the Department of the Army G-1 up to the Secretary of Defense.

	c.  Before NDAA 2011, all National Guard warrant officer promotions effective DOR was the date of the State promotion orders as stated in the Federal Recognition Board recommendations.

12.  An ARNG information paper, dated 9 August 2011, subject:  Warrant Officer Federal Recognition Scroll 01-11 Status and Update for Scrolls 02-11 through 10-11, states the DOR will not be retroactive to the DOR on the State promotion orders.

13.  National Guard Regulation 600-101 prescribes policies and procedures for ARNG warrant officer personnel management.  Chapter 7 states that promotion of warrant officers in the ARNG is a function of the State.  As in original appointments, a warrant officer promoted by State authority has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must satisfy the requirements for this promotion.  Promotions will be based on the Department of the Army proponent duty military occupational specialty certification via satisfactory completion of appropriate level of military education; time in grade; demonstrated technical and tactical competence; and potential for service in the next higher grade as determined by a Federal Recognition Board.

14.  A WO must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW2, 2 years in the lower grade) and the education requirements of Table 7-2 (completion of WOBC) of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a WO must be medically fit and meet the height and weight standards as well as pass the Army Physical Fitness Test.



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests adjustment of his DOR and effective date of promotion for CW2 to 3 March 2011.

2.  The evidence shows the applicant:

* was promoted to SFC/E-7 in October 2006
* was appointed as a WO1 in the ARNG on 25 September 2010
* completed WOBC on 2 March 2011

3.  Based on NGB Policy Memorandum Number 07-026, he would have been eligible for promotion to CW2 upon completion of WOBC and his records would have been corrected to show he was promoted to CW2 with a DOR and effective date of 3 March 2011.

4.  The NGB ultimately issued him Federal recognition orders promoting him to CW2, effective 25 September 2012.

5.  It appears the applicant was fully eligible for promotion on 3 March 2011; however, as a result of the 2011 NDAA, the promotion of a WO1 to CW2 is now issued by the President of the United States and is delegated to the Secretary of Defense.  

	a.  The delay in the applicant's promotion resulted from a statutory change in the procedures for the promotion of warrant officers that was mandated by the 2011 NDAA that warrant officers be placed on a scroll and staffed to the President (delegated to the Secretary of Defense) for approval.  The law took effect on 7 January 2011.  There followed a period of time during which the procedures for processing warrant officer appointment and promotion scrolls were developed and refined.
	
   b.  Although this process was modeled on the existing process of scrolling commissioned officer appointments and promotions, there was still a period during which the warrant officer scrolling process was being perfected.  This development process did result in the delay of the promotions of all ARNG warrant officers, and probably warrant officers from other components, recommended for promotion during the months immediately following the enactment of the scrolling requirements.  

	c.  The delay in question was not the result of an error or an injustice as much as it was the inherent consequence of elevating the appointment and promotion authority for warrant officers to such a high level.  While it is true the processing time has been materially reduced as the service learned how to streamline the new process, the fact remains that the delay is an organic feature of the new scheme mandated by Congress and not an error or an injustice specific to the applicant.

6.  In view of the foregoing evidence and the change in law, the applicant's effective date of promotion seems appropriate and reasonable and should not change.

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)                                         AR20130012973





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012973



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1