BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130014638 


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 correction of his Montana Army National Guard (MTARNG) records to adjust his date of rank (DOR) to chief warrant officer four (CW4) from 17 July 2013 to 16 May 2013.

2.  The applicant states the DOR listed on his promotion orders, 17 July 2013, should be adjusted to 16 May 2013 because that is the date his Federal Recognition Board (FRB) convened and approved his promotion to be effective.

3.  The applicant provides: 

* Memorandum/statement, dated 24 July 2013
* Orders Number 044-005, dated 13 February 2013
* Special Orders (SO) Number 180 AR, dated 23 July 2013
* National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board), dated 13 February 2013

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a Reserve warrant officer of the MTARNG and executed an oath of office on 2 February 2001.  He served in a variety of assignments and he was promoted to chief warrant officer three (CW3) on 16 May 2008.

2.  He successfully attended and completed the Warrant Officer Staff Course from 8 April 2012 to 11 May 2012.
3.  On 13 February 2013, an FRB was held by the MTARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion to CW4. The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  He was qualified for promotion to CW4, Senior Maintenance Officer, MTARNG.

4.  On 13 February 2013, the MTARNG published Orders 044-005 promoting the applicant to CW4 with an effective date and DOR of 16 May 2013.

5.  On 23 July 2013, NGB published Special Orders Number 180 AR extending the applicant Federal recognition for promotion to CW4 with an effective date and DOR of 17 July 2013.

6.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Branch, NGB, dated 27 June 2013.  The advisory official recommended disapproval of the applicant's request to adjust his DOR to 16 May 2013 and the State supports the recommendation.  The advisory official stated:

	a.  The applicant states he was boarded by an FRB on 13 February 2013 and promoted on MTARNG state promotion orders that same day with a DOR of 
16 May 2013.  Upon completion of this action, his state Official Personnel Manager (OPM) forwarded the appropriate documents to the NGB on 
20 February 2013 for issuance of Federal recognition (FED REC) orders so the promotion action could be finalized with a DOR approved by the FRB.  He stated the delay pending development of staffing procedures resulted in the applicant’s DOR being 17 July 2013, as opposed to the DOR of 16 May 2013 listed on his State promotion orders.

	b.  The applicant's FED REC orders could not have been processed from publication until the scroll the applicant was listed on was signed by the Secretary of Defense.  Given the approximate 120 days it takes for a packet to go through the administrative process and obtain Senate approval, the applicant's promotion order was signed in a reasonable amount of time.

	c.  The processing of the applicant's promotion packet falls under the National Defense Authorization Act (NDAA), dated 7 January 2011.  This law governs warrant officer appointments and mandates that the President of the United States, delegated to the Secretary of Defense, will promote all warrant officers to a higher grade.  Warrant officer promotions are placed on a scroll and staffed to the Secretary of Defense.  The delay in question was not the result of an error or injustice as much as it was an inherent consequence of elevating the appointment and promotion authority of warrant officers to such a high level.

7.  The applicant was provided with a copy of this advisory opinion, but he did not respond.

8.  National Guard Regulation 600-101 (Warrant Officers – 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 military occupational specialty certification via satisfactory completion of appropriate level of military education, time in grade, demonstrated technical/tactical competence, and potential for service in the next higher grade as determined by an FRB.

9.  A warrant officer must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW4, 4 years in the lower grade) and the educationalrequirements of Table 7-2 (completion of Warrant Officer Senior Staff Course) of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Additionally, a warrant officer must be medically fit and meet the height and weight standards as well as pass the Army Physical Fitness Test.

10.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of Warrant Officers in the ARNG, states that ARNG warrant officers are initially appointed and are also promoted by the State or Territory to which the officers are assigned.  The Chief, NGB, reviews and approves those actions. 
Title 10, U.S. Code, sections 571b and 12241b, introduce a requirement that all warrant officer appointments and promotions to chief warrant officer grades in the ARNG be made by the President of the United States.  As a result, in accordance with NDAA 2011, effective 7 January 2011 all initial appointments of warrant officers 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was considered for promotion to CW4 by an FRB that convened in 13 February 2013.  He was found fully qualified.  The State published promotion orders effective 16 May 2013.  It is unclear at what stage his promotion packet was forwarded to the NGB.  It is equally unclear when NGB processed his Federal recognition.

2.  However, promotions to CW4 are now issued by the President of the United States and is delegated to the Secretary of Defense as a result of NDAA 2011.  This requirement may add 90 days or more to the process for approval for appointments or promotions to be completed.

3.  With a State effective date of promotion of 16 May 2013, processing the Federal recognition by NGB was accomplished in July 2013 which is very reasonable given the added authority for a scroll by the Secretary of Defense.  Therefore, the applicant's effective date of promotion and DOR seem 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)                                         AR20130014638





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ABCMR Record of Proceedings (cont)                                         AR20130014638



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