IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140007415 


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) for chief warrant officer two (CW2) from 6 February 2013 to 10 August 2012.

2.  The applicant states the Maryland Army National Guard (ARNG) was very late submitting his promotion packet and it took some time for processing through proper channels.

3.  The applicant provides:

* Maryland ARNG Orders 052-087, dated 21 February 2014
* Maryland ARNG Orders 057-055, dated 26 February 2014
* Maryland ARNG Orders 057-058, dated 26 February 2014
* National Guard Bureau (NGB) Special Orders Number 95 AR, dated 11 April 2014

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Maryland ARNG, the applicant was appointed as a warrant officer one (WO1) in the Maryland ARNG on 10 August 2010 and extended Federal recognition as a WO1 effective the date of his initial appointment.

2.  Maryland ARNG Orders 052-087, dated 21 February 2014, promoted him to CW2 effective 20 February 2014.  The additional instructions state:  "Effective date of promotion in the ARNGUS [ARNG of the United States] (MD) will be the date permanent Federal Recognition orders are published."

3.  Maryland ARNG Orders 057-055, dated 26 February 2014, amended Orders 052-087 to read:  "Effective Date:  10 August 2012."

4.  Maryland ARNG Orders 057-058, dated 26 February 2014, amended Orders 052-087 to read:  "Effective Date:  6 February 2013."

5.  NGB Special Orders Number 95 AR, dated 11 April 2014, extended him Federal recognition as a CW2 effective 6 February 2013 with a DOR of 6 February 2013.

6.  NGB rendered an advisory opinion, dated 4 September 2014, wherein the Personnel Policy Division Chief recommended partial approval of the applicant's request.

	a.  The Personnel Policy Division Chief stated the applicant was eligible for promotion to CW2 effective 10 August 2012 when he met 2 years of time in grade from his initial appointment.  The applicant states the Maryland ARNG did not submit his promotion packet through the proper channels in a timely manner.

	b.  The applicant's promotion process fell under the guidance in the National Defense Authorization Act (NDAA) of 2011 requiring appointment/promotion of warrant officers by the President of the United States (delegated to the Secretary of Defense).  Warrant officers must undergo the Federal recognition process and the promotion effective date is when the scroll is signed.  Scroll processing takes approximately 90 days from the date the promotion packet is received by NGB.

	c.  NDAA 2013 was signed on "28 December 2012" which established this as the earliest date by law for the applicant's DOR and effective date.  The Personnel Policy Division Chief recommended adjustment of the applicant's Federal recognition date to 28 December 2012.

7.  The NGB advisory opinion was forwarded to the applicant for comment on 5 September 2014 with a suspense to respond not later than 20 September 2014.  The applicant did not respond.

8.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of Warrant Officers in the ARNG, states 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.

9.  Army Regulation 135-155 (ARNG and U.S. Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-17, states the promotion eligibility date is the date a warrant officer or second lieutenant meets the eligibility criteria for promotion to the next higher grade.  The DOR is the date the officer actually or constructively is appointed or promoted to a specific grade.

10.  Title 10, U.S. Code, sections 571b and 12241b, introduced 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, 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.

11.  NDAA 2013, signed into law by the President of the United States on 2 January 2013, provides that Federal recognition 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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for adjustment of his DOR for CW2 to 10 August 2012.

2.  Contrary to the NGB advisory opinion, NDAA 2013 wasn't signed into law until 2 January 2013.  NDAA 2013 provides for automatic extension of Federal recognition as a CW2 when a warrant officer has completed sufficient service as a WO1.  This change in law relieves the States of having to conduct Federal Recognition 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 the promotion authority the President has delegated to the Secretary of Defense.

3.  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.  The only way the date the applicant was granted Federal recognition for CW2 could be changed would be to show the Secretary of Defense approved his promotion on an earlier date.  Doing so would also affect his DOR; however, the ABCMR has no jurisdiction over Department of Defense records and cannot make that type of correction.

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 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)                                         AR20140007415





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ABCMR Record of Proceedings (cont)                                         AR20140007415



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