IN THE CASE OF: 

		BOARD DATE:	  24 April 2014

		DOCKET NUMBER:  AR20130013704 


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 an adjustment of her date of rank (DOR) for chief warrant officer two (CW2).

2.  She states, in effect, she was eligible for an automatic promotion to CW2 on 15 December 2012 when she met the 2-year time in grade requirement as stated in the National Defense Authorization Act (NDAA), Fiscal Year (FY) 2013.  Further, current Army National Guard (ARNG) promotion policy guidance states to remove the requirement for a Federal Recognition Board (FEB) for promotion to CW2.

3.  The applicant provides: 

* Commonwealth of Pennsylvania Orders 064-1005, dated 5 March 2013
* National Guard Bureau (NGB) Special Orders Number 125 AR, dated 
15 May 2013
* Orders 136-1050, dated 16 May 2013

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Pennsylvania Army National Guard (PAARNG), the applicant took the oath of office as a WO1 in the PAARNG on 
15 December 2010.

2.  On 21 December 2010, the NGB issued Special Orders Number 285 AR extending her Federal recognition (FEDREC) as a WO1 effective 15 December 2010, the date of her initial appointment.

3.  On 5 March 2013, the Adjutant General Department, Commonwealth of Pennsylvania, issued Orders 064-1005 promoting her to CW2 effective 
15 December 2012.

4.  On 23 April 2013, the Secretary of Defense signed the scroll approving the applicant's promotion.

5.  On 15 May 2013, the NGB issued Special Orders Number 125 AR extending her FEDREC as a CW2 effective 15 December 2012. 

6.  On 16 May 2013, the Adjutant General Department, Commonwealth of Pennsylvania, issued Order 136-1050 amending her previously-issued promotion orders to show the effective date and DOR for CW2 as 3 January 2013.

7.  The NGB issued Special Orders Number 127 AR, dated 17 May 2013, amending her FEDREC effective date to 3 January 2013.

8.  On 31 October 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 her 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 her.  ARNG Human Resources Personnel Policy Memorandum 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 NDAA that removed the requirement for a FEDREC Board for promotion to CW2.

	b.  The applicant's promotion to CW2 was governed by the 2011 NDAA, established on 7 January 2011 which requires the President (acting by a delegation through the Secretary of Defense) to appoint (promote) WO's to a higher grade.  Army Regulation 135-155 (Promotion of Commissioned Officers and WO's other than General Officers) states a WO's DOR will be used to establish the promotion eligibility date to the next grade.  WO's still must go through the FEDREC process and the promotion effective date is when the scroll is signed.



	c.  Eligibility for promotion does not mean automatic promotion to the next highest grade.  A WO1 is eligible for promotion with 2 years of time in grade, but this does not mean an automatic promotion.  National Guard Regulation 600-101 (WO's - Federal Recognition and Related Personnel Action) states promotions will be based on a variety of factors considered by a FEDREC Board.

	d.  The scrolling process takes approximately 120 days from the date the promotion packet is received by NGB.  The applicant's request is prior to the effective date of the referenced guidance.

9.  The applicant was provided a copy of the advisory opinion for comment and/or rebuttal.  She did not respond within the time allotted.

10.  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.

11.  Title 10, U.S. Code, sections 571(b) and 12241(b) 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.

12.  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.

13.  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 evidence of record shows the PAARNG promoted the applicant to CW2 with an effective date of 15 December 2012 and she was granted FEDREC effective the same day.

2.  Subsequently, and for reasons that are not clear, the State and the NGB amended her promotion orders and her FEDREC orders to show the effective date to CW2 as 3 January 2013.

3.  The applicant's contentions were noted.  However, it appears the delay in her promotion resulted from a statutory change in the procedures for promoting WO's that was mandated by the 2011 NDAA that required WO's to be placed on a scroll and staffed to the Secretary of Defense for approval. 

4.  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 WOs to such a high level.  

5.  In view of the foregoing evidence and the change in the law, her effective date of promotion seems appropriate and reasonable; therefore, it should not be changed.

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)                                         AR20130013704



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ABCMR Record of Proceedings (cont)                                         AR20130013704



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