BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20150000141 


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, in effect, requests reconsideration of his appeal to correct his date of rank (DOR) for chief warrant officer two (CW2) from 31 January 2012 to 20 November 2010.

2.  The applicant provides no personal statements or arguments.

3.  The applicant provides copies of a California Army National Guard (CAARNG) 18 November 2014 memorandum, a request for extension from the CAARNG Commanding General, and a copy of the Board’s prior action.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120005750 on 20 December 2012.

2.  This reconsideration request is more than 1 year old but is being considered because the applicant's efforts to assemble his evidence were hindered by deployment.

3.  Although the applicant does not provide a personal statement, the 18 November 2014 memorandum and request by the CAARNG Commanding General constitute new evidence warranting an additional review.

4.  On 4 March 2010 with prior enlisted service, the applicant was appointed a warrant officer in the CAARNG.  He completed his military occupational specialty (MOS) training on 19 November 2010.

5.  On 12 July 2011 orders were issued promoting him to CW2 effective 19 November 2010.  These orders were revoked on 20 September 2011.

6.  Following processing delays caused by the implementation of the new promotion procedures and minor clerical errors, the applicant's name was placed on the appropriate scroll for Presidential approval and he was subsequently extended Federal recognition in the rank of CW2 effective 31 January 2012.

7.  On 20 December 2012, the Board denied the applicant's request for the earlier effective date of promotion.  The reason for this denial was that effective 7 January 2011 by the Fiscal Year 2011 National Defense Authorization Act (NDAA), the authority to promote warrant officers to CW2 and above now required placement of the officer's name on a scroll and staffed to the President (delegated to the Secretary of Defense) for approval. 

8.  The applicant is shown to have been deployed to Afghanistan and then placed in the advanced course which resulted in his delay in requesting reconsideration of the Board's initial decision.

9.  The 18 November 2014 memorandum from the CAARNG Command Chief Warrant Officer is addressed to the Department of the Army Suitability Evaluation Board.  It outlined the reasons that the applicant was unable to file within the one year following the prior review and requested an exception to the time frame for requesting a reconsideration.  The Command Chief Warrant Officer outlined the history of the applicant's promotion consideration and stated the applicant should not have had to go through this process since his promotion to CW2 should have been automatic upon completion of his training.  He stated the applicant is promotable to the grade of CW2 with an effective date from the date of his military occupational specialty certification without further Federal Recognition Board action.  His first State order was not written until July 2011 and combined with the implementation of the NDAA resulted in a more than 13-month delay of his date of rank.  He opined that this creates an injustice.

10.  On 18 November 2014, the CAARNG Commanding General concurred with the request to afford the applicant an extension of the reconsideration time frame due to the applicant's deployment and other service obligations.

11.  National Guard Regulation 600-101 (Warrant Officers (WO) – Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states 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 MOS certification via satisfactory completion or constructive credit 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.

12.  Title 10, U.S. Code, sections 571b and 12241b introduced a requirement that all 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 of warrant or commissioned officers, will be issued by the President.  Requests for appointment will be staffed through the Department of the Army, Deputy Chief of Staff, G-1.  

13.  Title 10, U.S. Code, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was in a promotable status effective the date he completed his training.  However, he could not be promoted to CW2 until such time as the State issued promotion orders and a Federal recognition request was granted.

2.  The State failed to issue the promotion orders and submit the Federal recognition request until after the law changed requiring promotion to CW2 to be processed in the same manner as officer promotions, i.e. requiring the officer's name be placed on a scroll and staffed to the President (delegated to the Secretary of Defense) for approval.

3.  As previously stated, 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 a higher level.  While the processing time has since been materially reduced, 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.

4.  Additionally, not previously referenced is the fact that the applicant's effective date of promotion can only be changed by amending the date Federal recognition was granted by the Secretary of Defense. The ABCMR has no jurisdiction over Department of Defense records and therefore cannot make this type of correction.  

5.   Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.  Consequently, any correction to his effective date of promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.  In view of the foregoing, there is no basis for the requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120005750, dated 20 December 2012.



      __________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)                                         AR20150000141



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ABCMR Record of Proceedings (cont)                                         AR20150000141



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