IN THE CASE OF:	  

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130019347 


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 two (CW2) in the New York Army National Guard (NYARNG) from 29 January 2013 to 20 August 2012. 

2.  The applicant states he graduated from the Property Accounting Technician Warrant Officer Basic Course (WOBC) on 21 August 2012.  Approximately five days after the Federal recognition went through, the National Guard Bureau (NGB) issued a memorandum titled: Promotion from Second Lieutenant (2LT) to First Lieutenant (1LT) and from Warrant Officer One (WO1) to CW2 (PPOM Number 13-006) authorizing immediate promotion to CW2 after completion of WOBC.  

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report)
* NGB Certificate of Eligibility
* NGB Special Orders (SO) Number 32 AR (promotion)
* NGB SO Number 330 AR (initial appointment)
* NYARNG Orders 114-1016 (appointment)
* NYARNG Orders 270-1048 (promotion)
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board)
* NGB PPOM Number 13-006



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the NYARNG on 31 January 2000 and he held multiple military occupational specialties (MOS) including 92Y (Unit Supply Specialist).  He was promoted to sergeant first class (SFC)/E-7 on 31 August 2009.  

2.  He entered active duty on 20 November 2011.  He was honorably released from active duty and discharged from the ARNG in the rank/grade of SFC/E-7 on 23 April 2012 to accept an appointment. 

3.  He was appointed as a WO1 in the NYARNG and executed an oath of office on 24 April 2012.  He was assigned to Headquarters and Support Company, 42nd Infantry Division. 

4.  On 17 September 2012, NGB published SO Number 330 AR extending him Federal recognition for initial appointment effective 24 April 2012. 

5.  He attended and successfully completed the Property Accounting Technician WOBC from 30 July 2012 to 21 August 2012.  

6.  On 21 September 2012, NYARNG published Orders 265-1047 awarding him MOS 920A (Property Accounting Technician) effective 21 August 2012.  

7.  On 26 September 2012, NYARNG published Orders 270-1048 promoting him to CW2 with an effective date and DOR of 26 September 2012. 

8.  On 31 January 2013, NGB published SO Number 32 AR extending him Federal recognition for promotion to CW2 with an effective date and DOR as 29 January 2013. 

9.  An advisory opinion was received from the NGB on 18 April 2014 in the processing of this case.  An advisory official recommended partial approval to change the applicant's DOR to 28 December 2012, not 20 August 2012.  He stated:

	a.  The applicant states that his DOR to CW2 should reflect 21 August 2012, which is his date of completion of WOBC.  He further contends his DOR should be adjusted in accordance with (lAW) the NGB PPOM Number 13-006, dated 6 February 2013, which states in part, "Implement the 2013 National Defense Authorization Act (NDAA) for WO promotions to CW2 which removed the requirement for a Federal Recognition Board (FRB) for promotion to CW2." 

	b.  lAW NGB-ARH Policy Memo Number 07-026, paragraph 2, "Effective on the date of this memorandum, States are authorized to appoint SFC (E7) to the grade of CW2 if they meet the criteria below: (a) SFC who have served a minimum of two consecutive years as an E-7 may be appointed to CW2 in one of two ways:

		(1)  SFC who is certified by the Department of the Army (DA) MOS proponent prior to the date of initial appointment (attendance of WOBC not required) may be appointed in the grade of CW2 upon completion of Warrant Officer Candidate School (WOCS).  Constructive credit of WOCS may be granted if the Soldier has satisfactorily completed an Officer Candidate School (OCS) within the previous five years.

		(2)  SFC/E-7 who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC.  Constructive credit for WOCS may be granted if the Soldier satisfactorily completed OCS within the previous five years."  The applicant was promoted to E-7 on 31 August 2009.  He was appointed as a WO1 into the NYARNG effective 23 April 2012 and completed WOBC on 21 August 2012.  Based on the policy, he was eligible for CW2 immediately following WOBC.  

	c.  However, the processing of the Soldier's promotion packet falls under new guidance, NDAA of 2011 law, established on 7 January 2011.  The statute governing warrant officer appointments in a higher grade changed by adding a new requirement, that the President (acting by a delegation through the Secretary of Defense) promote warrant officers to a higher grade.  Regardless of the error that resulted in the processing of his promotion packet, this guidance would be applicable.  The Army Board for Correction of Military Records (ABCMR) may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.  As a result, ABCMR does not have the authority to recommend an amendment to a Soldier's promotion effective date.  Additionally, IAW Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), dated 13 July 2004), paragraph 4-17(b)(1) "A WO's DOR will be used to establish the promotion eligibility date (PED) to the next grade."

	d.  Eligibility for promotion does not mean automatic promotion to the next highest grade.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions), dated 26 October 2006), paragraph 7-2, states in part, "promotions will be based on: DA duty proponent 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.  Promotion will not be used solely as a reward for past performance ... " Warrant officers must go through the Federal Recognition process, and the promotion effective date is when the scroll is signed.  The scroll processing take approximately 120 days from the date the promotion packet is received at NGB.  

	e.   However, the Soldier's request is before the effective date, 28 December 2012, of the referenced guidance, NDAA 2013 and NGB-HRH (PPOM Number 13-006).  Therefore, it is recommended by the Warrant Officer Policy Branch and Federal Recognition section at NGB that the Soldier's promotion effective date to CW2 be adjusted to reflect 28 December 2012. 

	f.  The NYARNG concurs with this recommendation.

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

11.  PPOM Number 13-006, dated 6 February 2013, implements the 2013 NDAA for WO promotions to CW2 which removed the requirement for an FRB for promotion to CW2, reduces the administrative workload on the States and Territories, and streamlines the promotion process from 2LT to 1LT and from WO1 to CW2 within the ARNG, and increase the readiness of the officers in the ARNG by ensuring that all 2LT and WO1 are promoted on time when fully qualified for promotion.  It states:

	a.  Effective 1 March 2013, within the ARNG the following documentation requirement applies for promotion of officers to the ranks of 1LT and CW2.  The NGB Form 78 (Recommendation for Promotion to 1LT/CW2) is required for submission to the Federal Recognition Section (ARNG-HRP-I) for promotion from 2LT to 1LTor WO1 to CW2; no other documentation is required.  States must ensure the officer is fully qualified for promotion and that the supporting documents are on file in support of the officer's promotion.

	b.  The NGB Federal recognition section (ARNG-H RP) will scroll all 2LTs prior to reaching 18 months and all WO1s prior to reaching 24 months time in grade.  States are required to verify promotion eligibility when submitting requests for Federal recognition.

12.  NGR 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that promotion of WOs 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 DA proponent duty MOS certification via satisfactory completion 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 an FRB (the FRB requirement was eliminated in 2013).

13.  A warrant officer must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW2, 2 years in the lower grade) and the education requirements of Table 7-2 (completion of WOBC) of NGR 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade. Additionally, a WO must be medically fit and meet the height and weight standards as well as pass the APFT.

14.  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.  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, in accordance with the 2011 NDAA, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a WO in the NYARNG on 24 April 2012.  He completed WOBC on 21 August 2012.  He was recommended for promotion by the State on 21 September 2012.  

2.  His promotion packet appears to have been forwarded through the State to the NGB for extension of Federal recognition.  Since the promotion to CW2 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.

3.  He was extended Federal recognition in January 2013 which is about within the 90 to 120 day requirement to finalize his promotion.  Therefore, contrary to the NGB's advisory opinion, in view of the foregoing evidence and the change in law, the applicant's DOR seems 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)                                         AR20130019347





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ABCMR Record of Proceedings (cont)                                         AR20130019347



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