IN THE CASE OF:	   

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140012594 


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 his date of rank (DOR) for chief warrant officer two (CW2)/pay grade W-2.

2.  The applicant states he was appointed as a warrant officer one (WO1)/pay grade W-1 on 7 April 2009.  He states a promotion to CW2 (W-2) is time-based and automatically occurs after two (2) years of service.  The paperwork for his promotion was submitted on time and he should have been promoted on 7 April 2011.  However, as a result of administrative errors made by the Maryland Army National Guard (MDARNG) and delays at the National Guard Bureau (NGB), he was not promoted until 2 December 2011.  Consequently, he is now behind his peers in matters relating to consideration for military schooling and promotion to the next higher grade.

3.  The applicant provides copies of his –

* appointment documents
* warrant officer training
* DA Form 705 (Army Physical Fitness Training Scorecard – APFT)
* promotion documents

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard of the United States (ARNGUS) and MDARNG from 10 April 2002 through 6 April 2009.
2.  He was appointed as a reserve warrant officer in the ARNGUS and MDARNG, in the rank of WO1 (W-1), effective 7 April 2009.

3.  Headquarters, MDARNG, HQ-MDARNG-G1, Fifth Regiment Armory, Baltimore, MD, memorandum, dated 4 November 2010, awarded the applicant specialty skill identifier 153D (UH-60 Pilot).

4.  He was ordered to active duty in a Temporary Change of Station status on 
25 February 2011 for a period not to exceed 400 days.

5.  A DA Form 71 (Oath of Office – Military Personnel) shows the applicant executed an oath of office, on 7 April 2011, in the rank of CW2 (W-2).

6.  Headquarters, MDARNG, Fifth Regiment Armory, Baltimore, MD, 
Orders 109-032, dated 19 April 2011, promoted the applicant to CW2 (W-2) effective and with a DOR of 7 April 2011.

7.  Headquarters, MDARNG, Fifth Regiment Armory, Baltimore, MD, 
Orders 230-028, dated 18 August 2011, promoted the applicant to CW2 (W-2) effective and with a DOR of 18 August 2011.

8.  A review of the applicant's Official Military Personnel File failed to reveal a copy of orders revoking Headquarters, MDARNG, Fifth Regiment Armory, Baltimore, MD, Orders 109-032, dated 19 April 2011.

9.  NGB, Arlington, VA, memorandum, dated 13 December 2011, subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, shows the applicant was promoted to CW2 effective and with a DOR of 2 December 2011.

10.  NGB, Washington, DC, Special Orders Number 319 AR, dated 13 December 2011, announced the extension of Federal recognition in the ARNGUS of the applicant's promotion to CW2 effective 2 December 2011.

11.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably released from active duty on 27 February 2012 based on completion of required active service and transferred to a MDARNG unit.  He had completed 1 year and 3 days of net active duty service this period.  It also shows in –

* item 4a (Grade, Rate or Rank):  W01
* item 4b (Pay Grade):  W01
* item 12 (Record of Service), block i (Effective Date of Pay Grade):
2009  04  07  (7 April 2009)
12.  In support of his application the applicant provides the following documents:

   a.  U.S. Army Warrant Officer Career College Certificate that shows he graduated from the Warrant Officer Candidate School, Class 09-11, on 7 April 2009.

   b.  A DA Form 1059 (Service School Academic Evaluation Report) that shows he completed Initial Entry Rotary Wing/UH-60 Track Class, Number 10-004, on
2 September 2010.

   c.  A DA Form 705 that shows the applicant passed the APFT on 19 January 2011.

13.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, VA.

   a.  The advisory official does not recommend administrative relief.

	b.  She states the applicant's request is based on time-in-grade completion that is outlined in Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), chapter 2 (Promotion Eligibility and Qualification Requirements), paragraph 2-2 (Service Computation).  However, the Fiscal Year 2011 National Defense Authorization Act (NDAA) was implemented effective 7 January 2011.  She notes, "[t]his law supersedes the previously identified Army regulation and thus, the Soldier's promotion packet had to go through the scrolling process."

   c.  The applicant's Federal recognition (FEDREC) date for promotion to CW2 (W-2) cannot be modified because that would effectively amend the Secretary of Defense's action, which is beyond the authority of the NGB and the Army Board for Correction of Military Records (ABCMR).

   d.  She states NGB Regulation 600-101 (Warrant Officers – FEDREC and Related Personnel Actions), chapter 7 (Promotions), governs the Federal Recognition Board process.  Warrant officer promotions and the determination of potential for service in the next higher grade are still subject to the FEDREC process.  The promotion effective date is when the "scroll" is signed.

   e.  The advisory official concludes that neither the DOR nor promotion effective date can be changed in this case.  The applicant's promotion to CW2 (W-2) is governed by the regulatory requirement that the date FEDREC is extended, is both the DOR and promotion effective date.  NGB, Warrant Officer Policy Branch, confirms this guidance is supported by Army Regulation 135-155.
14.  On 20 November 2014, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  To date, the applicant has not provided a response.

15.  Title 10, U.S. Code, sections 571b and 12241b, introduced a requirement that all warrant officer (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 Department of the Army, Deputy Chief of Staff, G-1.  This requirement may add 90 days or more to the approval process for appointments or promotions to be completed.

16.  On 11 April 2011, NGB submitted a "make up" scroll to the Secretary of Defense containing the names of WOs whose packets had been submitted, but were delayed by NGB's implementation of the 2011 NDAA.  This scroll was approved on 21 July 2011 and WO's approved for promotion on this scroll have a DOR of 21 July 2011.  Subsequent to the processing of the "make up" scroll, the "normal" NGB FEDREC processing time has been between 90 and 120 days.

17.  The Fiscal Year 2013 NDAA, signed by the President on 2 January 2013, provides, in part, that FEDREC 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 applicant's request for correction of his DOR for CW2 (W-2) from 
2 December 2011 to 7 April 2011 was carefully considered.

2.  The evidence of record shows that MDARNG orders, dated 18 August 2011, announced the applicant's promotion to CW2 effective and with a DOR of 
18 August 2011, and the NGB announced the extension of FEDREC in the ARNGUS of his promotion to CW2 effective 2 December 2011.  This action was completed within the "normal" NGB FEDREC processing time (i.e., between 
90 and 120 days).  However, this is not the overriding issue in this case.

3.  The evidence of record shows the applicant executed an oath of office in the rank of CW2 on 7 April 2011 and MDARNG orders, dated 19 April 2011, announced his promotion to CW2 effective and with a DOR of 7 April 2011.  Thus, the evidence of record shows that, but for the MDARNG's tardiness in publishing the promotion order, the applicant's promotion packet would have been processed in time for inclusion in the "make up" scroll the NGB submitted on 11 April 2011.

4.  The evidence of record shows that the names of WOs whose promotion packets were submitted on the "make up" scroll were approved on 21 July 2011 and they were issued a DOR of 21 July 2011.

5.  Therefore, in view of the foregoing and as a matter of equity, it would be appropriate to correct the applicant's records to show he was promoted to CW2 in the ARNGUS and MDARNG with a DOR of 21 July 2011.  However, in this case, this correction does not extend to the effective date of the applicant's promotion to CW2 (W-2).

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 Department of the Army and Army National Guard records of the individual
concerned be corrected by:

	a.  showing he was promoted to the rank/grade of CW2/W-2 with a date of rank of 21 July 2011, and

   b.  correcting his 27 February 2012 DD Form 214 by –

* deleting the entry from item 4a and adding the entry "CW2"
* deleting the entry from item 4b and adding the entry "W02"
* deleting the entry from item12i and adding the entry "2011 12 02"


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 his promotion effective/with a date of rank of 7 April 2011.




      ____________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)                                         AR20140012594



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ABCMR Record of Proceedings (cont)                                         AR20140012594



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