IN THE CASE OF:  	  

		BOARD DATE:  12 November 2014	  

		DOCKET NUMBER:  AR20140004903 


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 an adjustment of his promotion effective date to chief warrant officer two (CW2) from 26 February 2013 to 25 September 2012.

2.  The applicant states he was eligible for promotion to CW2 on 25 September 2012.  All of his records were complete and in order at least 90 days prior to the date he was eligible for promotion.  Due to procedural holdups his promotion did not occur until 26 February 2013.  This has put a 5-month delay in his eligibility to attend future warrant officer career development courses and his future promotion to CW3.

3.  The applicant provides copies of the following:

* National Guard Bureau (NGB) Form 62E (Application for Federal Recognition as an Army National Guard (ARNG) Officer or Warrant Officer (WO) and Appointment as a Reserve Commissioned Officer or WO of the Army in the ARNG of the United States)
* WO Candidate School – Reserve Component diploma
* NGB Form 337 (Oaths of Office)
* Orders Number 270-133

CONSIDERATION OF EVIDENCE:

1.  The applicant successfully completed the WO Candidate School – Reserve Component on 25 September 2010.  

2.  Orders Number 270-133, issued by Headquarters, Missouri ARNG (MOARNG), on 27 September 2010, appointed him in the MOARNG, in the rank of WO one, effective 25 September 2010.  

3.  On 10 July 2012, a Federal Recognition Examining Board convened and found him qualified for promotion to CW2 in the duty title of Aviation Maintenance Technician.  

4.  Orders Number 332-063, issued by the MOARNG, on 27 November 2012, promoted him to CW2 effective 16 November 2012.

5.  A Promotion as a Reserve Commissioned WO of the Army memorandum, issued by the NGB, on 1 March 2013, promoted him CW2, effective 26 February 2013.

6.  In an advisory opinion, dated 4 September 2014, the Chief, Personnel Policy Division, NGB, reiterated the applicant's request and contentions.  The NGB official stated:

   a.  The processing of the applicant's promotion packet falls under the guidance of the National Defense Authorization Act (NDAA) of 2011 law, established on 7 January 2011.  The statute governing WO appointments in a higher grade changed by adding a new requirement that the President (acting by a delegation through the Secretary of Defense) appoint (promote) WOs to a higher grade.  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 of the Department of Defense.  As a result, ABCMR does not have the authority to recommend an amendment to a Soldier's promotion effective date.

   b.  Additionally, in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and WOs Other Than General Officers), dated 13 July 2004, paragraph 4-17b(1) "A WO's date of rank (DOR) will be used to establish the promotion eligibility date to the next grade."

   c.  The applicant met the 2-year time in grade for promotion; however, it did not mean automatic promotion to the next higher grade.  National Guard Regulation 600-101 (WO – Federal Recognition and Related Personnel Actions), dated 26 October 2006, paragraph 7-2, stated in part, "Promotions would be based on Department of the Army 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 would not be used solely as a reward for past performance…"

   d.  WOs must go through the Federal recognition process and the promotion effective date was when the scroll was signed.  The scroll processing takes approximately 90 days from the date the promotion packet was received at NGB. NDAA 2013, signed on 28 December 2012, established that date as being the earliest date by law that the applicant's effective date can be back dated for promotion to CW2.  

   e.  It was recommended by the WO Policy Branch and Federal Recognition section at NGB that the applicant's promotion effective date to CW2 be adjusted to reflect 28 December 2012.  The MOARNG did not concur with that recommendation.

7.  The advisory opinion was provided to the applicant on 5 September 2014 for acknowledgement/rebuttal.  He did not respond.

8.  The NDAA 2013, section 512, provides for the automatic Federal Recognition of promotion of certain ARNG WOs.  Title 32, U.S. Code, section 310(a), is amended by inserting "(1)" before "Notwithstanding" and by adding at the end the following new paragraph:  "Notwithstanding sections 307 and 309 of this title, if a WO of the ARNG is promoted to the grade of CW2, to fill a vacancy in a federally recognized unit in the National Guard, Federal recognition is automatically extended to that officer in the grade of CW2 effective as of the date on which that officer has completed the service in the grade prescribed by the Secretary concerned under Title 10, USC, section 12242, if the WO has remained in an active status since the WO was so recommended."  

9.  National Guard Regulation 600-100, chapter 8, establishes the policies and procedures for promotion of officers in the ARNG.  The regulation states that until Federal Recognition in the new rank is extended by the NGB, the individual cannot be promoted and paid in the higher rank.  The NGB has advised in similar cases such as this that recommendations for promotion must be processed through the NGB staff to obtain approval of the promotion by the President, and that the approval process normally takes approximately 3 months (90 days).







DISCUSSION AND CONCLUSIONS:

1.  The applicant met the time in grade for promotion to CW2 on 25 September 2012.  The NDAA 2013, section 512, provided for the automatic promotion Federal Recognition to ARNG WOs in the grade of CW2 effective as of the date on which that officer has completed the required time in grade.  The NDAA 2013 was signed on 28 December 2012.  

2.  It appears the applicant's scrolling for promotion to CW2 was approved on 26 February 2013.   

3.  Notwithstanding the NGB advisory opinion recommending an adjustment of the applicant's promotion effective date to CW2 to 28 December 2012, the date the NDAA 2013 was signed, the ABCMR may only correct Army records.  The ABCMR has no authority to correct records created by the other Service or the Department of Defense.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Where WO personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

4.  Consequently, any correction to the applicant's promotion effective date to CW2 would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.  Unfortunately, in view of the foregoing, he is not entitled to an adjustment of his promotion effective date to CW2 to
28 December 2012 with entitlement to back pay and allowances.

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)                                         AR20140004903



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ABCMR Record of Proceedings (cont)                                         AR20140004903



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