BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150001592


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, in effect, adjustment of his date of rank (DOR) for promotion to chief warrant officer two (CW2), from 29 January 2013 to 
21 October 2012.  

2.  The applicant states, in effect, that:

* due to an insufficient review process at the National Guard Bureau (NGB), his promotion was held up by 3 months
* his State was not at fault and his packet was returned several times due to changing policies at the NGB
* a PPOM (Personnel Policy Operational Message) states that all warrant officers with valid requirements will be automatically promoted to CW2 upon their 2-year anniversary and will not be required to submit a promotion packet
* he was promoted on 29 January 2013 after the policy was approved on 
3 January 2013 and his promotion packet took over 180 days to process
* with the repeated errors and the new policy, it is his intention to be awarded a promotion date of 21 October 2012 in accordance with his      2-year anniversary

3.  The applicant provides no supporting evidence with his application. 




CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant executed an oath of office in the District of Columbia Army National Guard (DCARNG) on 21 October 2010.

2.  Special Orders Number 248 AR, issued by the NGB on 9 November 2010, extended him Federal recognition for his appointment to warrant officer one (WO1), effective 21 October 2010.

3.  He attended and successfully completed the Human Resources Technician Warrant Officer Basic Course (WOBC), from 29 November 2010 through 10 February 2011.  Upon the completion of this course, he was awarded military occupational specialty 420A (Human Resources Technician). 

4.  He was granted an interstate transfer on 8 December 2011.  Orders 030-001, issued by the New Jersey Army National Guard (NJARNG) on 30 January 2012, appointed him in the NJARNG effective 26 January 2012.  He also executed an Oaths of Office on the same date. 

5.  A Federal Recognition Board (FRB) was held by the NJARNG on 27 July 2012 to determine if he was qualified to be awarded Federal recognition as a CW2.  The board found him physically, morally, generally and professionally qualified for Federal recognition as a CW2.  

6.  Orders 228-040, issued by the NJARNG on 15 August 2012, promoted him to CW2 with an effective date and date of rank of 20 October 2012.  This promotion order was later revoked by Orders 258-065, which were issued by the NJARNG on 14 September 2012.

7.  A memorandum issued by the NGB on 31 January 2013 promoted him to CW2 with an effective date of 29 January 2013.  

8.  Special Orders Number 32 AR, issued by the NGB on 31 January 2013, extended Federal recognition for his promotion to CW2, effective 29 January 2013.

9.  Orders 045-031, issued by the NJARNG on 14 February 2013, amended his State promotion orders and promoted him to CW2 with an effective date and date of rank of 29 January 2013. 

10.  In the processing of this case, an advisory opinion was obtained on 4 May 2015 from the Chief, Personnel Policy Division, NGB.  This official recommended denial of the applicant's request and opined, in pertinent part, the following:
     a.  The applicant states his promotion was delayed due to processing his request for federal recognition as a result of a change in the requirement based on the National Defense Authorization Act (NDAA) of 2011.  The 2011 NDAA introduced a requirement that all warrant officer appointments and promotions to chief warrant officer grades in the Army National Guard of the United States (ARNGUS) be made by the President of the United States.

     b.  The 2013 NDAA removed the requirement for an FRB for promotion to CW2.  PPOM 13-006 (The Promotion from Second Lieutenant (2LT) to First Lieutenant (1 LT) and from Warrant Officer One (W01) to Chief Warrant Two (CW2)) states the Federal Recognition section (ARNG-HRP) will scroll all W01s prior to reaching 24 months time in grade.  However, this guidance went into effect on 1 March 2013 after the applicant was promoted to CW2.

     c.  The NJARNG concurs with this advisory opinion. 

11.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. However, he did not respond.

12.  National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officer personnel management.  Chapter 7 states that promotion of warrant officers in the ARNG is a function of the State.  As in original appointments, a warrant officer 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 the 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 an FRB.

13.  A warrant officer must complete the minimum years of promotion service as shown in Table 7-1 and the education requirements of Table 7-2 of NGR 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states, in pertinent part, that the minimum time in grade for promotion to CW2 is 2 years in the lower grade.  Table 7-2 states, in pertinent part, that the minimum military education requirement for promotion to CW2 is completion of the WOBC.

14.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of Warrant Officers in the ARNG, dated 14 June 2011, states that ARNG WOs are initially appointed and 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 introduced a requirement that all WO appointments and promotions, to chief warrant officer 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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for adjustment of his DOR for promotion to CW2 from 29 January 2013 to 21 October 2012 has been carefully considered.

2.  The evidence of record shows the applicant's DOR as a WO1 was 
21 October 2010 and he completed WOBC on 10 February 2011.  He was favorably considered by an FRB held by the NJARNG in July 2012, which found him physically, morally, generally and professionally qualified for Federal recognition as a CW2.

3.  The NJARNG promoted him to CW2 effective 20 October 2012, which was later amended to 29 January 2013.  On 31 January 2013, the NGB issued him Federal recognition orders for promotion to CW2 effective 29 January 2013.  

4.  As a result of the 2011 National Defense Authorization Act (NDAA), the promotion of a WO1 to CW2 is now issued by the President of the United States with delegation 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)                                         AR20110020111



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ABCMR Record of Proceedings (cont)                                         AR20150001592



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