IN THE CASE OF: 

		BOARD DATE:	    5 June 2014

		DOCKET NUMBER:  AR20130017430 


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 date of rank (DOR) to chief warrant officer four (CW4) in the Montana Army National Guard (MTARNG) from 
9 September 2013 to 20 December 2012.

2.  The applicant states the DOR listed on his promotion orders, 9 September 2013, should be adjusted to 20 December 2012 because that is the date his Federal Recognition Board (FRB) convened and approved his promotion to be effective.

	a.  He was boarded by an FRB held by the MTARNG on 20 December 2012 and promoted on state promotion orders on 20 December 2012, with a DOR of 20 December 2012.  Upon completion of this action his state Officer Personnel Manager forwarded the appropriate documents to the National Guard Bureau (NGB) on 21 December 2012, for issuance of Federal Recognition (FED REC) orders, finalizing his promotion action with a date of rank to be as approved by the FRB.  However, this delay pending development of staffing procedures resulted in his date of rank being 9 September 2013, as compared to the date on his state promotion orders of 20 December 2012.

	b.  Additionally, on 2 January 2013, his promotion packet was returned to the state due to a discrepancy in the position he was being promoted against.  The Unit Manning Report (UMR) shows the position he was slotted in is authorized two Instructor Pilots.  The two positions were broken out to show that his slot was 

strictly for an Active Guard Reserve (AGR) Soldier even though his unit's Modified Table of Organization and Equipment (MTOE) did not show his position that way.  On 5 January 2013, his unit's Command Chief Warrant Officer (CCWO) explained to the NGB that the UMR was set up that way to show the AGR position.  On 28 January 2013, the status of his FED REC packet changed, showing it was an initial packet review.  His packet was returned to his unit again on 12 February 2013 for the previously stated reason and the status of his packet changed to return to state.  His FED REC packet was subsequently delayed for additional administrative reasons.  The complete process from the day his promotion packet was uploaded to until the day his promotion orders were published took 265 days.  These delays were out of his control and well beyond the NGB target of 120 days.  

3.  The applicant provides: 

* Self-authored statement
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 20 December 2012
* Orders Number 355-012, dated 20 December 2012
* Special Orders (SO) Number 226 AR, dated 11 September 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 13 November 1998.  He served in a variety of assignments and he was promoted to chief warrant officer three (CW3) on 18 December 2006.

2.  He successfully attended and completed the Warrant Officer Staff Course from 4 October 2011 to 9 November 2011.

3.  He provided an NGB Form 89, dated 20 December 2012, which shows an FRB was held by the MTARNG on 20 December 2012 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, general qualifications, and he was qualified for promotion to CW4.

4.  On 20 December 2012, the MTARNG published Orders 355-012 promoting the applicant to CW4 with an effective date and DOR of 20 December 2012.

5.  On 11 September 2013, NGB published Special Orders Number 226 AR extending the applicant Federal recognition for promotion to CW4 with an effective date and DOR of 9 September 2013.

6.  Title 10, U.S. Code, section 1211 (Officers – ARNG of the United States), states when an officer of the ARNG to whom temporary Federal recognition has been extended is appointed as a Reserve for service as a member of the ARNG of the United States, his/her appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.  Section 14308(f) states the effective date of a promotion of a Reserve officer of the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date on which such Federal recognition in that grade is so extended.

7.  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.

8.  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.


9.  Fiscal Year (FY) 2011 National Defense Authorization Act (NDAA), Subject: Changes to Warrant Officer Federal Recognition Process, dated 22 July 2011, states 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.  This new requirement removed the authority from the NGB to approve and publish all warrant officer Federal Recognition Orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his DOR for CW4 should be adjusted from 
9 September 2013 to 20 December 2012 due to delays beyond his control has been noted.  Additionally, he stated that the processing of his FED REC orders was delayed as a result of issues with the slotting of his MTOE position and other administrative errors beyond his control.  However, with the exception of his statement, he has provided no additional evidence such as statements from his chain of command or NGB officials to show this was the case.

2.  The evidence of record shows he was favorably considered for promotion to CW4 by an FRB that convened in 20 December 2012 and the MTARNG published State promotion orders effective 20 December 2012, which show his effective date and DOR as 20 December 2012.  The processing of the Federal recognition by NGB was accomplished on 11 September 2013 and he was issued an effective date and DOR of 9 September 2013.  

3.  As a result of the 2011 NDAA, the promotion of a CW3 to CW4 is now issued by the President of the United States and is delegated to the Secretary of Defense.  This requirement may add 90 to 120 days or more to the process for approval for appointments or promotions to be completed.

4.  There is insufficient evidence to determine whether the delay in question was as a result of an error or an injustice or whether it was the result of the inherent consequence of elevating the appointment and promotion authority for WOs to such a high level.  As such, there is an insufficient basis for granting the requested relief.





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)                                         AR20130017430



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ABCMR Record of Proceedings (cont)                                         AR20130017430



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