IN THE CASE OF:	   

		BOARD DATE:	  4 December 2014

		DOCKET NUMBER:  AR20140011776 


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 his date of rank for promotion to chief warrant officer two (CW2) in the New Jersey Army National Guard (NJARNG) be backdated to the date of the state promotion, on 27 July 2012.

2.  The applicant states, in effect:

* he turned in a complete promotion packet 3 months early
* packet was delayed through no fault of his own
* his State published the orders late
* it took an additional 6 months for the Federal Recognition Board (FRB) to complete its process
* he is now 7 months behind his peers

3.  The applicant provides 2 sets of orders and a memorandum.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed in the NJARNG as a warrant officer (WO) one and executed an oath of office on 10 June 2010.He completed training for military occupational specialty (MOS) 153D (UH-60 pilot).  He is currently on active duty as an active guard reserve (AGR) officer with the NJARNG.

2.  On 27 July 2012, an FRB was held by the NJARNG to determine if the applicant was qualified to be awarded Federal Recognition for promotion to CW2. The proceedings indicated he was satisfactory in his physical qualifications, moral character, and general qualifications and recommended granting Federal Recognition.

3.  Orders 228-042, NJARNG, dated 15 August 2012, authorized him promotion to CW2 with an effective date and date of rank of 27 July 2012.  In additional instructions it stated the insignia of new grade would not be worn until receipt of Federal Recognition.

4.  On 31 January 2013, National Guard Bureau (NGB) issued Special Orders Number 31 AR extending him Federal Recognition for promotion to CW2 with an effective date and dare of rank of 29 January 2013.  

5.  An advisory opinion was received from the NGB on 6 October 2014 in the processing of this case.  An advisory official recommended partial approval of the applicant's request.  The official stated the applicant's promotion packet falls under the guidance of the National Defense Authorization Act (NDAA) of 2011.  This law required the President of the United States to appoint and promote warrant officers to the next higher grade.  As such, the fact there may have been delays or processing errors would not result in an adjustment in date of rank.  The advisory opinion goes on to state the NDAA for 2013 was signed, on 2 January 2013.  This date could therefore be used as the applicant's date of rank instead of the date currently shown.

6.  The applicant was provided with a copy of this advisory opinion on 8 October 2014; however, he did not respond. 

7.  National Guard Regulation (NGR) 600-101 (WO's - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that promotion of WO's 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 proponent duty MOS certification via satisfactory completion of the 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 an FRB.  

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The record shows the applicant's promotion packet was considered by an FRB at the State level on 27 July 2012.  The FRB found him professionally qualified for promotion to CW2 and a promotion order was published by the State on 15 August 2012 with an effective date of 27 July 2012.

2.  As a result of the NDAA of 2011, warrant officer appointments to the next higher grade required the action by the President of the United States, as delegated to the Secretary of Defense.  This new requirement resulted in the delay of all warrant officer promotions as procedures were developed and implemented to meet the new legal mandate.  The delay was therefore not the result of an error or an injustice, but rather a consequence of elevating the appointment and promotion authority for WO's to such a high level.

3.  In light of the NDAA 2011 requirements, the effective date of promotion must remain 29 January 2013, as directed by the Secretary of Defense, on behalf of the President of the United States.  The date of rank, however, is not tied to the requirements of NDAA 2011.  As the FRB convened on 27 July 2012 and because it takes 90 to 120 day to process the Federal recognition, a reasonable date of rank would have been 27 November 2012.  In view of the foregoing evidence the applicant's date of promotion should be changed to 27 November 2012, not 27 July 2012 as he requests, and the effective date would remain 29 January 2013.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all appropriate Department of the Army records of the individual concerned by amending his date of rank (not effective date of rank) to 27 November 2012 for promotion to chief warrant officer two.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending the effective date to 27 July 2012 for promotion to chief warrant officer two. 



      ___________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)                                         AR20140011776





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ABCMR Record of Proceedings (cont)                                         AR20140011776



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