IN THE CASE OF:  	  

		BOARD DATE:  5 May 2015	  

		DOCKET NUMBER:  AR20140014257 


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 an adjustment of his date of rank (DOR) of chief warrant officer four (CW4) from 6 March 2014 to 15 November 2013.

2.  The applicant states:

   a.  He was recommended for promotion to CW4 in July 2013.  He was placed on a scroll that was being tracked by the National Guard Bureau's (NGB) Officer Personnel Branch.  During this time the NGB changed the promotion system.  The new system did not show his status.  In November when other warrant officers (WO) on the scroll were promoted, Mr. Fxxx Hxxxxx contacted the State and was advised his packet had been returned.  He had fallen out of the system and would have to be re-scrolled.  This meant starting over.

   b.  His packet was re-scrolled and he received his Federal Recognition order with an effective date and DOR of 6 March 2014.  The NGB advised that due to the circumstances he should file an Army Board for Correction of Military Records (ABCMR) application to have his DOR changed to 15 November 2013.  The DOR for the other WOs on the scrolls were all at their 5-year time in grade or later.  The scroll was signed on 15 November 2013, so that is the date that his DOR should be.

3.  The applicant provides copies of the following:

* NGB Form 89 (Proceedings of a Federal Recognition Examining Board)
* Orders Number 210-026
* Orders Number 322-005
* Memorandum, subject:  Recommendation for CW4 (written to the ABCMR for the applicant)
* Memorandum, subject:  Correction of Military Records (for the applicant)
* Memorandum, subject:  Promotion as a Reserve Commissioned WO of the Army
* Special Orders (SO) 61 AR

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the Oklahoma Army National Guard (OKARNG), as a WO one (WO1), on 16 December 1999, with prior commissioned officer service.  His military occupational specialty was utility operations maintenance technician.  

2.  He provided copies of the following:

   a.  An NGB Form 89 which shows a Federal Recognition Examining Board convened on 1 June 2013 and recommended him for promotion to CW4.  The board was approved on 29 July 2013.

   b.  The following orders issued by the OKARNG, Joint Force Headquarters, on/for:

* Orders Number 210-026, dated 29 July 2013, promoting him to CW4 with an effective date and DOR of 29 July 2013
* Orders Number 322-005, dated 18 November 2013, amending Orders Number 201-026 promoting him to CW4 with an effective date and DOR of 17 October 2013

   c.  A memorandum of recommendation for the applicant, dated 1 August 2014, wherein the OKARNG, G1 Operations Officer, stated, in effect:

		(1)  The applicant's promotion to CW4 was dropped out of the system when the NGB changed systems last fall.  The Federal Recognition Section changed from a legacy system to the new eTracker system and some files were left in the old system and some were started in the new system.  Some of the packets, to include the applicant's, were shown in both systems.

		(2)  In researching the applicant's case, it was determined that his documents were dropped out of the system and continued to show the packet working for 60 days.  When an analyst started seeing that the applicant's packet had not moved over to the Pentagon, he began inquiring and that was when the NGB determined that the documents were lost and the applicant's packet had not moved but did show up.  The packet was reloaded thus resulting in a 60-day delay in the applicant's permanent Federal Recognition being returned.

		(3)  He spoke with Mr. Hxxxxx, in the Federal Recognition Branch and Mr. Hxxxx recommended the applicant file an ABCMR appeal that hopefully would go through to the Secretary of the Army.

		(4)  He also had another ABCMR case on another WO that stated, "As a result of the 2011 National Defense Authorization Act, the promotion of WOs was now issued by the President of the United States and was delegated to the Secretary of the Service.  Once the Secretary approved the scroll, the Board could approve a change to the DOR, but not the effective date of promotion."

		(5)  He understood that the applicant requested a change of his DOR to the November date, which was when other WOs on his scroll were promoted.

	d.  A Correction of Military Records memorandum, dated 5 August 2012, wherein The Adjutant General (TAG), OKARNG, requested the applicant's promotion to CW4 be forwarded to the Secretary of the Army for correction.  TAG stated the applicant's promotion was lost due to an administrative error at the NGB.  The applicant's error was brought to the attention of the OKARNG's Military Personnel Office by the Federal Recognition Section at the NGB.  There should be relief because it was no fault of the officer and it should not be held against the officer.

   e.  A Promotion as a Reserve Commissioned WO of the Army memorandum, dated 12 March 2014, wherein the applicant was promoted to CW4 with an effective date and DOR of 6 March 2014.

   f.  SO 61 AR, dated 12 March 2014, wherein the applicant was extended Federal Recognition and promoted to CW4 with an effective date and DOR of 6 March 2014.

3.  In an advisory opinion, dated 25 March 2015, the Chief, Personnel Policy Division, NGB, recommended approved of the applicant's request for an adjustment to his DOR of CW4 from 6 March 2014 to 15 November 2013.  The NGB official stated:

   a.  The applicant stated his promotion was delayed due to the processing of a request for Federal Recognition in July 2013.  The applicant's promotion packet was not boarded in time due to changeover of tracking programs at the NGB Federal Recognition Branch from legacy to eTracker; therefore, it was re-scrolled for a later DOR.
   
   b.  The Federal Recognition application system, which was supported by Guard Knowledge Online, lost its accreditation in October 2013.  That led to the use of eTracker, G1 Portal website for accountability of promotion packets.  Some data was lost in the transition of tracking systems, along with the applicant's, forcing the State to resubmit promotion packets.  While it is true that the processing time had been materially reduced as the NGB Federal Recognition Branch had learned how to streamline the new process, the fact remained that the applicant's delay was not an "error" or "no fault of his own," and that his DOR was delayed.  

   c.  The NGB and OKARNG concurred with the recommendation.

4.  The advisory opinion was provided to the applicant on 30 March 2015 for acknowledgement/rebuttal and he concurred.

5.  NGB Policy Number 11-051, dated 14 June 2011, governed Federal Recognition of initial appointments and appointments to a higher grade for WOs. That policy treated an appointment to a higher grade as a promotion.  That policy reflected changes to the law contained in the 2011 National Defense Authorization Act that amended Title 10, U.S. Code (USC), section 12241, concerning the approval authority concerning WO promotions and appointments.

6.  Tile 10, USC, section 12241, as amended, provides that appointments made in a permanent reserve grade of a CW officer shall be made in the same manner as prescribed for regular WO grade by Title 10, USC, section 571(b).  This provision states appointment in the grade of regular WO grades shall be made by the President.  This authority has been delegated to the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  A Federal Recognition Examining Board approved on 29 July 2013 recommended the applicant for promotion to CW4.  During the processing of his promotion packet for Federal Recognition the NGB changed promotion tracking systems and the applicant's promotion packet was lost.  It was subsequently 
re-scrolled for a later DOR.

2.  The initial scroll that his name should have been listed on was signed on 15 November 2013.  His promotion to CW4 was delayed through no fault of his own; therefore, it would be appropriate to correct his CW4 DOR to 15 November 2013.
3.  It is noted that there is no provision of law applicable to adjust the effective date, as in doing so would amend an action by the Secretary of the Defense.  The Board does not have the authority to correct actions by the Secretary of Defense.  

4.  In view of the foregoing, his records should be corrected as recommended below.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all of Oklahoma Army National Guard and Department of the Army records of the individual concerned be corrected by showing he was extended Federal Recognition and promoted to CW4 with a DOR of 15 November 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)                                         AR20140014257



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ABCMR Record of Proceedings (cont)                                         AR20140014257



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