IN THE CASE OF:	   

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140012866 


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 her effective date of promotion and date of rank (DOR) to chief warrant officer two (CW2) in the Army National Guard (ARNG) be adjusted from 6 September to 7 April 2011.

2.  The applicant states she met all of the requirements for promotion and she submitted her packet 90 days prior to being eligible.  Upon submission of her packet, her State published an order with an effective date of promotion and DOR of 19 January 2011, which was later amended to 7 April 2011.  During the process her packet dropped off the tracker numerous times due to a policy change regarding the Federal recognition (FEDREC) of warrant officer (WO) appointments; however, a member of her State Officer Personnel Branch stated he would get with the National Guard Bureau (NGB) to do a mass correction for all of the packets which were affected during this timeframe.

3.  The applicant provides:

* Orders 027-759
* Orders 115-700
* Special Orders Number 131 AR
* Special Orders Number 210 AR
* a memorandum




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior enlisted service, the applicant executed an oath of office in the Georgia ARNG (GAARNG) on 7 April 2009.

3.  On 24 April 2009, the GAARNG published Orders 114-700 appointing her in the grade of rank of warrant officer one (WO1) effective 7 April 2009.

4.  On 28 May 2009, the NGB published Special Orders Number 131 AR extending her FEDREC for her initial appointment in the ARNG, effective 7 April 2009.

5.  On 2 September 2009, she completed the Human Resources Warrant Officer Basic Course (WOBC).

6.  On 27 January 2011, the GAARNG published Orders 027-759 promoting her to CW2 effective 19 January 2011.

7.  On 25 April 2011, the GAARNG published Orders 115-700 which amended her effective date of promotion and DOR to CW2 from 19 January to 7 April 2011.

8.  On 7 September 2011, NGB Special Orders Number 210 AR were published extending FEDREC to the applicant for her promotion to CW2 effective 6 September 2011.

9.  National Guard Regulation 600-101 (WOs - FEDREC and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that 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 FEDREC 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 military occupational specialty certification via satisfactory completion 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 FEDREC Board.

10.  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 National Guard Regulation 600-101 to attain eligibility for promotion and receive FEDREC in the higher grade.  Additionally, a WO must be medically fit and meet the height and weight standards as well as pass the Army Physical Fitness Test.

11.  NGB Policy Memorandum 11-015, Subject: FEDREC of WOs 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 introduce a requirement that all WO appointments and promotions to chief WO grades in the ARNG be made by the President of the United States (POTUS).  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 (SECDEF)).  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 to be completed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the effective date and date of rank for her promotion to CW2 in the ARNG adjusted to 7 April 2011 has been carefully examined.

2.  The evidence of record shows her effective date as a WO1 was 7 April 2009.  As a result, her promotion eligibility date was established as 7 April 2011.

3.  The GAARNG promoted her to CW2 effective 19 January 2011, which was later amended to 7 April 2011.  On 7 September 2011, the NGB issued her FEDREC orders for promotion to CW2 effective 6 September 2011.

4.  As a result of the change in policy, the promotion of a WO1 to CW2 is now issued by the POTUS and is delegated to the SECDEF.

	a.  The delay in the applicant's promotion resulted from a statutory change in the procedures for the promotion of WOs that was mandated by the 2011 National Defense Authorization Act that WOs be placed on a scroll and staffed to the POTUS (delegated to the SECDEF) for approval.  The law took effect on       7 January 2011.  There followed a period of time during which the procedures for processing WO appointment and promotion scrolls were developed and refined.

	b.  Although this process was modeled on the existing process of scrolling commissioned officer appointments and promotions, there was still a period during which the WO scrolling process was being perfected.  This development process did result in the delay of the promotions of all ARNG WOs, and probably WOs from other components, recommended for promotion during the months immediately following the enactment of the scrolling requirements.

	c.  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 is an organic feature of the new scheme mandated by Congress and not an error or an injustice specific to the applicant.

5.  In view of the foregoing evidence and the change in law, the applicant's effective date and date of rank of promotion seems appropriate and reasonable 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 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)                                         AR20140012866





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ABCMR Record of Proceedings (cont)                                         AR20140012866



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