IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140018126 


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 two (CW2) in the Army National Guard (ARNG) be adjusted from 11 August 2011 to 4 February 2011.

2.  He states his promotion was held up due to the newly introduced scroll process for warrant officer (WO) promotions and was not back dated once the list was approved.  

3.  He provides:

* Memorandum, Subject:  Appointment as a Reserve WO of the Army Under Title 10, U.S. Code, section 12201 and 12241
* Orders 032-643, dated 1 February 2011
* Orders 040-600, dated 9 February 2011
* Memorandum, Subject:  Promotion as a Reserve Commissioned WO of the Army
* Excerpts from Army Regulation 135-155 (Promotion of Commissioned Officers and WOs Other Than General Officers)
* Special Orders 188 AR, dated 16 August 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Nevada (NV) ARNG on 23 March 2006.  He was honorably discharged on 3 February 2009 to accept an appointment as a Reserve warrant officer one (WO1) on the following day. 
2.  On 9 March 2009, the National Guard Bureau (NGB) published Special Orders Number 53 AR extending him Federal recognition to WO1 with an effective date and DOR of 4 February 2009.

3.  On 8 July 2010, he completed his Warrant Officer Basic Course (WOBC).

4.  On 1 February 2011, Nevada Military Department, Office of the Adjutant General, Carson City, NV, published Orders 032-643, which show he was promoted to CW2 with an effective date and DOR of 25 January 2011.  On
9 February 2011, his orders were amended to change his effective date to 
4 February 2011.  

5.  On 16 August 2011, the National Guard Bureau (NGB) published Special Orders Number 188 AR extending him Federal recognition for promotion to CW2 with an effective date and DOR of 11 August 2011.  

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 Federal recognition date for appointment to WO1 was
4 February 2009; his Federal recognition date for promotion to CW2 was 
11 August 2011.

   b.  The applicant's request is based on time in grade completion as outlined in Army Regulation 135-155, paragraph 2-2 which states, "Promotion service is computed based on time-in-grade (TIG) performed in the current permanent WO grade.  As of 1 October 1986, service performed in the equivalent temporary Army of the United States WO grade held at the time of the individual's most recent appointment in the Reserve of the Army will be credited."

   c.  Personnel Policy Operational Message Number 11-015, dated 14 June 2011, paragraph 2 (b), states in part, "... introduce a requirement that all warrant officer appointments and promotions to chief warrant officer grades in the ARNG of the United States be made by the President of the United States (POTUS)." Paragraph 5 (a) of the same memorandum, states in part, " ... effective 
7 January 2011, all initial appointments of WOs and appointments in a higher grade (promotion), by warrant or commission, will be issued by the POTUS.  Request for appointments will be staffed through the Department of the Army, Assistant Chief of Staff, G-1.  This requirement may add 90 days or more to the process of approval for appointment as a Reserve WO of the Army to be completed."
   d.  The delay of which the applicant complains results from a change in the procedures for the promotion of WOs that was mandated by the National Defense Authorization Act (NDAA) of 2011, Section 502, which stipulates WO promotions be placed upon a scroll and staffed to the President (delegated to the Secretary of Defense) for approval.  The law took effect 7 January 2011.  Though this process was modeled 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 of all ARNG WOs, and probably WOs from other components, recommended for promotion during the months immediately following the enactment of the scrolling requirement.  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 such a high level.  While true that the processing time has been materially reduced as the Service has learned how to streamline the new process, the fact remains that the delay of which the applicant complains is an organic feature of the new scheme mandated by Congress.

   e.  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). 

   f.  The NGB WO Policy Branch 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 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 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 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.  Section 512 of Public Law 112-239, dated 2 January 2013, provides for the automatic Federal recognition and promotion of ARNG WOs from the rank/grade of WO1/W-1 to CW2/W-2 when they are being promoted to fill a vacancy in a federally recognized unit in the ARNG, effective as of the date on which that WO has completed 24 months TIG if the WO has remained in an active status since they were so recommended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the effective date for his promotion to CW2 in the ARNG adjusted to 4 February 2011 has been carefully examined.

2.  The evidence of record shows his effective date as a WO1 was 4 February 2009.  As a result, his promotion eligibility date was established as 4 February 2011 based upon completion of 24 months TIG in a continuously active status.

3.  The NVARNG promoted him to CW2 effective 4 February 2011.  On 
11 August 2011, the NGB issued him Federal recognition orders for promotion to CW2 effective 11 August 2011.

4.  As a result of the NDAA 2011, the promotion of a WO1 to CW2 is now issued by the POTUS and is 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 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 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)                                         AR20140018126



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ABCMR Record of Proceedings (cont)                                         AR20140018126



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