IN THE CASE OF:  

		BOARD DATE:  9 December 2014	   

		DOCKET NUMBER:  AR20140001092 


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) to chief warrant officer two (CW2) from 10 January 2013 to 14 July 2012, based on the completion of 24 months time in grade (TIG) and the required military education requirements.

2.  The applicant states that due to no fault of his own his promotion to CW2 was delayed for six months.  He forwarded his promotion packet to the 50th Area Support Group 90 days prior to his eligibility date for promotion.  He was later transferred to an Active Guard Reserve (AGR) status with the 53rd Infantry Brigade Combat Team; however, his packet was not forwarded on time to the National Guard Bureau (NGB) for promotion processing.  All of his classmates who graduated on 15 July 2010 were promoted to CW2 on 14 July 2012.  In accordance with Army Regulation 135-155 (Army National Guard and U.S. Army Reserve - Promotion of Commissioned Officers and Warrant Officers and Warrant Officer other than General Officers), a WO1 is eligible for promotion to CW2 with 24 months TIG.

3.  The applicant provides:

* Initial appointment orders
* AGR orders
* NGB promotion orders
* 2 DA Forms 1059 (Service School Academic Evaluation Report)
* NGB appointment memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a CW2 in the Florida Army National Guard (FLARNG).

2.  The record shows he completed the Warrant Officer Candidate Course and was initially appointed to warrant officer one (WO1) effective 15 July 2010.

3.  His record contains, and he also provides, a DA Form 1059, authenticated on 15 June 2011, which shows he completed the Supply Systems Technician Warrant Officer Basic Course (WOBC), Phase II, on 17 June 2011.

4.  Office of the Adjutant General, FLARNG, Orders 230-013, dated 17 August 2012, promoted him to CW2 with a DOR and effective date of promotion of 
16 August 2012.  These orders contain the entry "The effective date of promotion cited on this order will be adjusted to be concurrent with the effective date of Federal Recognition in the ARNG of the United States (ARNGUS) when granted by Chief, NGB."

5.  He was ordered to full-time National Guard duty in the AGR on 15 May 2012.

6.  NGB Special Orders Number 14 AR, dated 14 January 2013, extended him permanent Federal recognition for promotion to the grade of CW2 effective 
10 January 2013.

7.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommends partial relief based upon the following reasons.

	a.  Regardless of the error that resulted in the processing of his promotion packet, the National Defense Authorization Act (NDAA) 2011 law, established on 7 January 2011, changed the governing statute for warrant officer appointments in a higher grade by adding a new requirement, that the President (acting by a delegation through the Secretary of Defense) promote warrant officers to a higher grade.  The applicant's Federal Recognition date for promotion to CW2 cannot be modified because that would effectively amend the Secretary of Defense's action, which is beyond the authority of the Army Board for Correction of Military Records (ABCMR).  Warrant officers still must go through the Federal recognition process and the promotion effective date is when the scroll is signed.   The scroll processing can take approximately 120 days from the date the promotion packet is received at NGB.

	b.  In accordance with Army Regulation 135-155, paragraph 4-17b(1), "a warrant officer's date of rank (DOR) will be used to establish the promotion eligibility date (PED) to the next grade.

	c.  The applicant's request is before the effective date, 28 December 2012, of NDAA 2013 NGB-HRH Personnel Policy Memorandum #13-006.  Thus 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.  The FLARNG concurred with this recommendation.  

8.  On 13 May 2013, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal.  No response was received.

9.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, states that ARNG WO's 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, introduces a requirement that all WO appointments and promotions to chief WO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WO's 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 Office of the Deputy Chief of Staff, G-1.  This requirement may add 90 to 120 days (or more in some instances) to the process for approval for appointments or promotions.

10.  Title 10, U.S. Code, sections 571(b) and 12241(b) introduced a requirement that all WO appointments and promotions to chief WO 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 (delegated to the Secretary of Defense).  

11.  The 2013 NDAA, signed by the President on 2 January 2013, provides, in part, that FEDREC is automatically extended to an officer in the grade of CW2 effective as of the date on which the officer has completed the service in the next lower grade prescribed by the Secretary concerned.

12.  Army Regulation 135-155 states the DOR is the date the officer actually or constructively was appointed or promoted to a specific grade.



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests adjustment of his CW2 DOR to 14 July 2012.

2.  The evidence of record shows the applicant was initially appointed to WO1 on 15 July 2010.  The FLARNG promoted the applicant to CW2 with an effective date of 16 August 2012 and he was granted FEDREC effective 10 January 2013.

3.  The applicant's contentions were noted.  However, it appears the delay in his promotion resulted from a statutory change in the procedures for promoting WO's that was mandated by the 2011 NDAA that required WO's to be placed on a scroll and staffed to the Secretary of Defense for approval.

4.  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 WOs to such a high level.

5.  The 2013 NDAA, established on 2 January 2013, states that FEDREC is automatically extended to an officer in the grade of CW2 effective as of the date on which the officer has completed the service in the next lower grade prescribed by the Secretary concerned.  This change in the law simply relieves the States of having to conduct FEDREC Boards for junior warrant officers whose promotions are largely based on time served in the next lower grade.  The new law did not change the fact that promotion to a higher warrant officer grade may only be accomplished under promotion authority the President has delegated to the Secretary of Defense.

6.  Notwithstanding the NGB and FLARNG recommendation to adjust the applicant's DOR to 28 December 2012, the applicant was subject to the same process as all other warrant officers serving under similar circumstances.  There is no evidence of error, inequity, or injustice in the effective date of his promotion to CW2.

7.  The applicant's promotion was not unduly delayed.  The new staffing procedures may take up to 120 days or more to the process for approval for appointments or promotions to be completed.  His promotion effective date/DOR of 10 January 2013 is reasonable and within the 90 to 120-day projected window.

8.  In view of the foregoing evidence and the change in law, the applicant's effective date of promotion 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)                                         AR20140001092





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ABCMR Record of Proceedings (cont)                                         AR20140001092



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