IN THE CASE OF:	  

		BOARD DATE:	  28 October 2014

		DOCKET NUMBER:  AR20140002153 


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 her date of rank (DOR) and effective date of promotion to chief warrant officer two (CW2), from 11 August 2011 to 11 February 2011 with associated back pay.

2.  The applicant states:

	a.  In accordance with paragraph 2-10c(2) of National Guard Regulation   600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions), she was eligible for immediate promotion to CW2 upon completion of the Warrant Officer Basic Course (WOBC).

	b.  Upon graduating from the WOBC, her promotion packet was submitted to the National Guard Bureau (NGB), where it was delayed for 6 months because NGB was not prepared for the change in process.  NGB did not publish a new promotion policy until 15 June 2011.  Although she was placed on the first scroll in the new process, that scroll was returned multiple times resulting in a 6-month delay.

	c.  Scrolls initiated after the one she was on were granted Federal recognition prior to hers.

3.  The applicant provides:

* an excerpt from National Guard Regulation 600-101
* Special Orders Number 188 AR, issued by NGB on 16 August 2011
* DA Form 1059 (Service School Academic Evaluation Report)
* her promotion orders to the enlisted rank/grade of master sergeant/E-8

CONSIDERATION OF EVIDENCE:

1.  On 22 January 1994, following prior service in the Regular Army, the applicant enlisted in the Army National Guard (ARNG).  On 9 October 2008, she was promoted to the rank/grade of MSG/E-8 and on 29 March 2010, she was honorably discharged to accept an appointment as a commissioned officer in the Oklahoma ARNG (OKARNG).  

2.  On 30 March 2010, she was appointed as a warrant officer one (WO1) in the OKARNG.  

3.  On 10 February 2011, she completed the WOBC.

4.  Orders 041-044, issued by the OKARNG on 10 February 2011, promoted her to CW2 with an effective date and DOR of 10 February 2011.  

5.  Special Orders Number 188 AR, issued by the NGB on 16 August 2011, awarded her permanent Federal recognition for promotion to CW2 effective 11 August 2011.

6.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommends disapproval of the applicant’s request.  The opinion noted the following:

	a.  Processing of the applicant's promotion packet falls under guidance, the National Defense Authorization Act (NDAA) of 2011, established on 7 January 2011.  The statute governing warrant officer appointments in a higher grade changed by adding a new requirement, that the President promote warrant officers to a higher grade (delegated to the Secretary of Defense (SECDEF)).  Regardless of the error that resulted in processing her promotion packet, this guidance would be applicable.  The Army Board for Correction of Military Records (ABCMR) may only correct Army records.  The ABCMR has no authority to correct records created by the other services or the Department of Defense.  As a result, the ABCMR does not have the authority to recommend an amendment to a Soldier's promotion effective date.  Additionally, in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-17b(1), "A WO’s DOR will be used to establish the PED [promotion eligibility date] to the next grade."

	b.  Eligibility for promotion does not mean automatic promotion to the next higher grade.  National Guard Regulation 600-101, paragraph 7-2, states, "Promotions will be based on:  DA [Department of the Army] duty proponent MOS [military occupational specialty] 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.  Scroll processing takes approximately 120 days from the date the promotion packet is received at NGB.  The NGB Federal Recognition Section received the applicant's final packet on 11 April 2011 and placed it on scroll U02-11.  Therefore, NGB, the Warrant Officer Policy Branch, and the Federal Recognition Section recommended the applicant's DOR should remain in accordance with NGB Special Orders Number 188 AR effective 16 August 2011.

	c.  The Oklahoma ARNG non-concurs with this recommendation.

7.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  She did not respond.

8.  ARNG Policy Memorandum Number 11-105, dated 14 June 2011, pertains to Federal recognition of warrant officer appointments in the ARNG.  This memorandum states all initial appointments of warrant officers and appointments in a higher grade (promotion) by warrant or commission will be issued by the President effective 7 January 2011.

9.  An ARNG information paper, dated 22 July 2011, subject:  NDAA 2011 Changes to Warrant Officer Federal Recognition Process, states:

	a.  Prior to 7 January 2011, all warrant officer Federal recognition appointments and promotions were approved by the Secretary of the Army.  The Secretary of the Army delegated this authority to the Director, NGB, and NGB published all Federal recognition orders for warrant officers.

	b.  On 7 January 2011, NDAA 2011 was signed creating a new requirement that all warrant officer appointments and promotions would have to be signed by the President.  This new requirement removed NGB authority to approve and publish all warrant officer Federal recognition orders.  All warrant officer appointments and promotions are now placed on a scroll and processed through various channels from the Department of the Army G-1 up to the SECDEF.

	c.  Before NDAA 2011, all ARNG warrant officer promotions effective DOR were the date of the State promotion orders as stated in the Federal Recognition Board recommendations.

10.  An ARNG information paper, dated 9 August 2011, subject:  Warrant Officer Federal Recognition Scroll 01-11 Status and Update for Scrolls 02-11 through 10-11, states the DOR will not be retroactive to the DOR on the State promotion orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of her DOR and effective date of promotion to CW2 from 11 August 2011 to 11 February 2011, with associated back pay.

2.  By law, effective 7 January 2011, all warrant officer promotions are placed on a scroll and processed through various channels up to the SECDEF.

	a.  The delay in the applicant's promotion resulted from a statutory change in procedures for promotion of warrant officers that was mandated by NDAA 2011 requiring warrant officers to be placed on a scroll and staffed to the President for approval (delegated to the SECDEF).  The law took effect on 7 January 2011.  There followed a period of time during which the procedures for processing warrant officer appointment and promotion scrolls were developed and refined.

	b.  Although this process was modeled on the existing process of scrolling commissioned officer appointments and promotions, there was still a period during which the warrant officer scrolling process was being perfected.  This development process did result in the delay of the promotions of all ARNG warrant officers, and probably warrant officers from other components, recommended for promotion during the months immediately following the enactment of the scrolling requirements.

	c.  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.  While it is true that the processing time has been materially reduced as the services learned how to streamline the new process, the fact remains that the delay is an organic feature of the new scheme mandated by Congress and not an error or an injustice specific to the applicant.

3.  In view of the foregoing evidence and the change in law, the applicant's effective date of promotion and date of rank seems appropriate and reasonable and should not be adjusted.

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)                                         AR20140002153



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ABCMR Record of Proceedings (cont)                                         AR20140002153



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