IN THE CASE OF:  	  

		BOARD DATE:  10 September 2015	  

		DOCKET NUMBER:  AR20140016620 


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 effective date of promotion to chief warrant officer five (CW5) in the Army National Guard (ARNG) be adjusted from 19 August 2014 to 18 March 2014.

2.  He states based on past promotions of Title 10 Active Guard Reserve personnel, the effective date of rank (DOR) has typically been back-dated to the date of the Table of Distribution and Allowances (TDA) authorization memorandum provided to the state by the National Guard Bureau (NGB) of the State's Federal Recognition Board (FRB) date of rank.  He maintains that the unnecessary delay in the promotion process resulted in his potential loss of pay of $1,462.00 per month for each month beyond 18 March 2014.

3.  He provides:

* applicant's self-authored statement
* memorandum, subject:  Appointment as a Reserve Warrant Officer (WO) of the Army, dated 21 August 2014
* emails
* Officer Record Brief
* memorandum, subject:  Results of the Fiscal Year (FY14) CW5 Review Advisory Panel, dated 19 December 2013
* NGB Forms 89 (Proceedings of a Federal Recognition Examining Board), dated 19 February and 22 April 2014
* Orders 052-873, dated 21 February 2014
* Orders 269-2, dated 26 September 2013
* memoranda, subject:  Recommendation for Promotion of Officer, dated 17 and 18 March 2014 
* TDA
* excerpts from National Guard Regulation 600-101 (Commissioned Officers - Federal Recognition and Related Personnel Actions)
* Special Orders 232 AR, dated 21 August 2014

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in both the Regular Army and the U.S. Army Reserve (USAR), on 26 March 1993, the applicant was appointed as a Reserve WO.  On 1 May 1994, he was discharged from the USAR to accept an appointment in the Virginia (VA) ARNG on the following day. 

2.  He was promoted to:

* CW2 on 20 April 1995
* CW3 on 24 November 2001
* CW4 on 27 September 2007

3.  NGB Forms 89, dated 19 February and 22 April 2014, show a board determined that the applicant was qualified for appointment as a CW5 and recommended granting him Federal recognition. 

4.  Orders 052-873, issued by the State of NC, Department of Public Safety, Joint Force Headquarters, promoted him to CW5, with an effective date and a date of rank of 19 February 2014.  However, on 23 April 2014, those orders were revoked.

5.  On 21 August 2014, the NGB published Special Orders Number 232 AR extending him Federal recognition to CW5 with an effective date and a date of rank of 19 August 2014.  He was subsequently promoted to CW5.

6.  In the processing of this case an advisory opinion was obtained from Chief, Personnel Policy Division, NGB.  The advisory official recommends denial of the applicant's request and states:

   a.  The applicant’s complaint resulted from a change in the procedures for the promotion of WOs that followed a period during which the procedures for processing WOs appointment and promotion scrolls were developed and refined at the NGB based on new guidance and law from Headquarters, Department of the Army.  Though this process was modeled on the existing process for scrolling officer appointments and promotions, there was still a period during which the WO scrolling process was being perfected.  This developmental process did result in the delay of the promotions for all ARNG WOs, and probably WOs from other components recommended for promotion during the months immediately following the enactment of the scrolling requirement.  
   
   b.  The delay in question was not the result of "error" or "injustice" as much as it was the inherent consequence of elevating the appointment and promotion authority for WOs to higher level (Secretary of Defense).  While true that the processing time has been materially reduced as the NGB Federal Recognition Branch has learned how to streamline the new process, the fact remains that the delay of which the applicant complains is not an "error" or "injustice" particular to his case.
   
   c.  The advisory official further states that eligibility for promotion does not mean automatic promotion to the next highest grade as specified in National Guard Regulation 600-101 (WOs - Federal Recognition and Related Personnel Actions). 

   d.  The applicant’s date of rank should remain 19 August 2014, the date the Secretary of Defense signed the scroll. 
   
   e.  The NC ARNG concurs with this recommendation.

7.  The applicant was provided a copy of the advisory opinion and afforded an opportunity to provide a response, but he elected not to respond.

8.  National Guard Regulation 600-101 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 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 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 Federal Recognition Board.

9.  A WO must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW5, 5 years in the lower grade) and the education requirements of Table 7-2 (completion of WO Senior Staff College) of National Guard Regulation 600-101 to attain eligibility for promotion and receive Federal recognition 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.

10.  NGB Policy Memorandum 11-015, Subject: Federal Recognition 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).  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.

11.  Fiscal Year (FY) 2011 National Defense Authorization Act (NDAA), Subject: Changes to WO Federal Recognition Process, dated 22 July 2011, states 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 to 120 days or more to the process for approval for appointments or promotions to be completed.  This new requirement removed the authority from the NGB to approve WO promotions to the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the effective date for his promotion to CW5 in the ARNG adjusted from 19 August 2014 to 18 March 2014 has been carefully examined.

2.  It is noted that orders were issued promoting him to CW5 with a date of rank and an effective date of 19 February 2014 which were later revoked.  The revocation was the result of the NDAA 2011 which changed the promotion of WO to the POTUS which was further delegated to the Secretary of Defense.  

	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 NDAA that WOs be placed on a scroll and staffed to the President (delegated to the Secretary of Defense) 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 for 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 the POTUS.  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 requirement mandated by Congress and not an error or an injustice specific to the applicant.

3.  In view of the foregoing evidence and the change in law, the applicant's effective date 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)                                         AR20140016620





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ABCMR Record of Proceedings (cont)                                         AR20140016620



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