BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140011498 


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, in effect, reconsideration of the Board's previous decision on his request that his promotion effective date and date of rank (DOR) as a chief warrant officer two (CW2) in the Pennsylvania Army National Guard (PAARNG) be adjusted from 17 October 2012 to 20 April 2012 and entitlement to back pay and allowances.

2.  The applicant states, in effect, that due to personnel transitions in his Brigade S1 office he was not properly advised regarding his promotion.  Also, he did not recognize the importance of responding to the National Guard Bureau (NGB) advisory opinions received in the original review of his case.  He cites examples of the transition of personnel and other alleged mitigating circumstances regarding the processing of his CW2 promotion packet.  He states the current human resources technician advised him of similar cases reviewed by the Board during the same timeframe in which the Board granted favorable decisions.  He provides timeline information indicating his promotion process had taken longer than normal.  He also bases his request for reconsideration in part on a recent revision of Pennsylvania Military Regulation (PMR) 600-101 in which Federal recognition is not required for promotion to CW2.  He states that under the provisions of this change he would be awarded an adjustment of his DOR of 10 months.

3.  The applicant provides a personal statement and a Headquarters, 55th Armored Brigade Combat Team (ABCT) Commander's Memorandum of Endorsement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120022073, on 16 July 2013.

2.  The Headquarters, 55th ABCT Commander's Memorandum of Endorsement provided by the applicant is new evidence, which requires that the Board reconsider his request.

3.  The applicant had prior enlisted service in the Regular Army and PAARNG.  He was promoted in the PAARNG to the rank/grade of sergeant first class (SFC)/E-7 on 23 November 2007. 

4.  On 31 August 2011, he successfully completed the Warrant Officer Candidate School (WOCS) and he executed an NGB Form 337 (Oaths of Office) for appointment as a WO in the PAARNG.  

5.  On 16 December 2011, he successfully completed the Property Accounting Technician Warrant Officer Basic Course (WOBC). 

6.  On 6 January 2012, the PAARNG published Orders 006-1021 awarding him MOS 920A, effective 16 December 2011. 

7.  On 23 February 2012, the NGB published Special Orders (SO) Number 68 AR extending him Federal recognition for initial appointment as a WO effective 31 August 2011. 

8.  On 29 February 2012, the NGB published SO Number 71 AR extending him Federal recognition for award of MOS 920A effective 16 December 2011. 

9.  An email containing a timeline for the CW2 promotion processing for the applicant shows the PAARNG Officer Branch received his promotion packet on 27 March 2012 and forwarded it to NGB on 17 April 2012.  In May 2012 his promotion packet was returned to the State for correction of an error.  The error was corrected, NGB was notified, and the promotion packet proceeded through the scrolling process.

10.  On 19 October 2012, the NGB published SO Number 369 AR promoting him to CW2 with an effective date and DOR of 17 October 2012. 

11.  During the processing of the original case, in an advisory opinion, an NGB official recommended partial approval of the applicant's request.  The NGB official stated the NGB Federal recognition section could not explain why the applicant's Federal recognition order for initial appointment took over 4 months to process, nor could it be explained why his promotion packet to CW2 took over 6 months to process.  NGB had confirmed that based on historical data, the applicant should have received his Federal recognition order promoting him to CW2 effective 20 April 2012.  

12.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not submit a response.

13.  In support of his current application, he provided a Headquarters, 55th ABCT Commander's Memorandum of Endorsement, dated 13 June 2014, supporting approval of the NGB advisory recommendation of an adjusted CW2 promotion effective date of 20 April 2012 for the applicant.

14.  National Guard Regulation (NGR) 600-101 (WO - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states promotion of WOs in the ARNG is a function of the State.  As in original appointments, a WO 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 Department of the Army (DA) proponent duty 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.  A WO 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.  

15.  NGB Policy Memorandum Number 07-026 provided that, effective 14 August 2007, States were authorized to appoint Soldiers in the rank of SFC to the rank of CW2 if the SFC had served a minimum of 2 consecutive years as a SFC and was eligible for MOS training.  An SFC could be promoted to CW2 after completion of WOCS and WOBC. 

16.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of WO's 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 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).  Requests for appointment will be staffed through the DA, 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.

17.  On 3 January 2013, the Fiscal Year 2013 (FY13) National Defense Authorization Act (NDAA) was signed into law amending Title 32, U.S. Code, section 310(a),  by adding "(2) Notwithstanding sections 307 and 309 of this title, if a warrant officer, W-1, of the National Guard is promoted to the grade of chief warrant officer, W-2, 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 chief warrant officer, W-2, effective as of the date on which that officer has completed the service in the grade prescribed by the Secretary concerned under section 12242 of title 10, if the warrant officer has remained in an active status since the warrant officer was so recommended."

18.  Title 10, U. S. Code, section 1552(a)(1), allows the Secretary of a military department to correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or restore an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his promotion was unduly delayed appears to have some merit.

2.  The evidence of record shows he previously served in the ARNG in the rank of SFC, as of 23 November 2007.  Following completion of WOCS on 31 August 2011, he was appointed as a WO, in the PAARNG and executed an oath of office on 31 August 2011.

3.  An SFC who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC.  Eligibility for promotion does not mean automatic promotion to the next highest grade.  NGR 600-101, 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."
4.  He was appointed as a WO1 on 31 August 2011.  He completed WOBC on 
16 December 2011 and he was awarded MOS 920A effective the same date.  He was promoted to CW2 with an effective date and DOR of 19 October 2012.  The processing of his CW2 promotion packet may have been delayed to some extent due to administrative issues.  However, the processing time does not appear to be excessive, particularly in light of the 2011 NDAA requirement for the promotion of a WO to CW2 to be issued by the President of the United States, which was delegated to the Secretary of Defense.  This process did result in the delay of the promotions of all ARNG WOs.

5.  It appears in large part that 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.  While it is true the processing time has been materially reduced as the service learned how to streamline the new process, the fact remains that the delay was an organic feature of the new scheme mandated by Congress and not an error or an injustice specific to the applicant.

6.  It further appears the applicant was referring to the FY13 NDAA change when he indicated his case should be reconsidered based in part on a change to PMR 600-101.  This change essentially states that for those WOs serving in an active status, Federal recognition would be automatically extended in the grade of CW2 with an effective date on which the officer had completed the service in the grade prescribed by the Secretary concerned.  The FY13 NDAA change now precludes WO's from being denied a more timely promotion to CW2.  Unfortunately for the applicant, this law is not retroactive and cannot be used as an authority for amending his promotion date.

7.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by other Services or the Department of Defense.  Promotion to CW2 requires approval by the Secretary of Defense.
Consequently, based on the authorities cited above, any correction to the applicant's promotion to CW2 would go beyond the authority of this Board.  Additionally, without specific Board docket numbers, the board is unable to address his contention that the Board has granted favorable decisions in similar cases. 

8.  In view of the foregoing evidence, principally the effective dates of the FY11 and FY13 changes in law, his effective date of promotion appears to be appropriate 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 to amend the decision of the ABCMR set forth in Docket Number AR20120022073, dated 16 July 2013.




      _______ _ 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)                                         AR20140011498



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ABCMR Record of Proceedings (cont)                                         AR20140011498



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