IN THE CASE OF:	 

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130014794 


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 12 August 2011 to 25 March 2011.

2.  The applicant states, in effect, that he should have been granted Federal Recognition and promoted to the rank of CW2 on 25 Match 2011; however, due to unnecessary administrative delays in the Federal Recognition process he was not granted Federal Recognition and  promoted to the rank of CW2 until 
12 August 2011. 

3.  The applicant provides copies of his Federal Recognition Examining Board proceedings and his promotion orders from the New Mexico Army National Guard (NMARNG).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was serving as an Adjutant General Corps warrant officer one (WO1) in the NMARNG on 25 March 2011 when a Federal Recognition Examining Board approved the applicant for promotion to the rank of CW2 effective 25 March 2011.

3.  Special Orders Number 189 AR issued by the National Guard Bureau (NGB) on 16 August 2011 granted Federal recognition to the applicant in the rank of CW2 effective 12 August 2011.

4.  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 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’s State Headquarters and the applicant for comment.  The NMARNG Headquarters concurred with the NGB’s opinion and to date the staff of the Board has not received a response from the applicant.

5.  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).

6.  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 considered by a Federal Recognition Board 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 12 August 2011 despite that he met promotion qualification on 25 March 2011. 

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)                                         AR20130014794





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ABCMR Record of Proceedings (cont)                                         AR20130014794



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