IN THE CASE OF:	  

		BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130014293 


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 promotion to the rank of chief warrant officer two (CW2) from 3 January 2013 to 4 May 2012.

2.  The applicant states, in effect, that he should have been promoted to the rank of CW2 on 4 May 2012 because that is when he had served 2 years time in grade as a warrant officer one (WO1).  However, he was not promoted to the rank of CW2 until 3 January 2013.

3.  The applicant provides copies of his promotion orders to WO1 and CW2.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the pay grade of E-5 as an air traffic controller in the Indiana Army National Guard (INARNG) when he was honorably discharged to accept appointment as an aviation WO1 in the INARNG on 4 May 2010.  He completed the Basic Officer Leadership Course (BOLC) and Initial Entry Rotary Wing (UH-60A/L) Course (IERWC) on 18 October 2012 (2 years, 5 months, and 14 days) after his appointment.

2.  Special Orders Number 143 AR issued by the National Guard Bureau on 
10 June 2013 granted Federal recognition to the applicant in the rank of CW2 effective 3 January 2013.

3.  In the processing of this case, a staff advisory opinion was obtained from the NGB which recommended that the applicant’s request be disapproved.  Officials at the NGB opined, in effect, that while the time in grade requirement for promotion to the rank of CW2 is 24 months, individuals must meet the military education requirements for promotion and the applicant did not meet those requirements until 18 December 2012.  Additionally, the delay in the applicant’s Federal recognition was due to a change in the law that required warrant officers to be approved at a higher level and it took a period of time to refine the process; however, the delay was not the result of an error or injustice specifically related to his case.  The advisory opinion was provided to the applicant for comment and to date the staff of the Board has not received a response.

4.  National Guard Regulation 600-101 (WO's - Federal Recognition and Related Personnel Actions) 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 MOS 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 (FRB).

5.  NGB Policy Memorandum 11-015, subject:  Federal Recognition of Warrant Officers 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.  Title 10, U.S. Code, sections 571b and 12241b introduce a requirement that all WO appointments and promotions to chief warrant officer 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.  Requests for appointment will be staffed through the Department of the Army (delegated to the Secretary of Defense), 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was not educationally qualified for promotion to CW2 until he completed the BOLC and IERWC on 18 October 2012.  He was considered by an FRB that found him fully satisfactory in his physical qualifications, moral character, and general qualifications.  The NGB issued him Federal recognition orders for promotion to CW2 effective 3 January 2013 despite that he met promotion qualification on 18 October 2012. 

2.  However, as a result of the 2011 National Defense Authorization Act (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.  
   
   b.  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.  

3.  In view of the foregoing evidence and the change in law, the applicant's effective date of promotion seems appropriate and reasonable and 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)                                         AR20130014293





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ABCMR Record of Proceedings (cont)                                         AR20130014293



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