IN THE CASE OF:	  

		BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20150012608 


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 reconsideration of his request that his date of rank (DOR) for chief warrant officer two (CW2) be adjusted to "27 September 2011" vice "5 March 2012."

2.  The applicant states:

     a.  He applied to the Army Board of Correction of Military Records (ABCMR) for an adjustment of his DOR and his request was denied.  During annual training he spoke with a fellow Warrant Officer Candidate School classmate who indicated his application had been approved.  CW2 G__ provided him with a copy of his approval letter, which he is providing in order to support his claim.

     b.  He and CW2 G__ graduated from the warrant officer basic course in a timely manner, had/have current security clearances, and deployed in the same division targeting cell as warrant officer one (WO1) filling CW3 billets.

     c.  He is requesting that his DOR be adjusted to reflect the same date as his classmate based on the fact that they both met the same criteria and standards.  He is not requesting back pay.  

3.  The applicant provides, as new evidence, the ABCMR decision document pertaining to CW2 G__ and a self-authored statement. 



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 AR20120013627 on 25 June 2013.

2.  After having had previous enlisted service in the Texas Army National Guard (TXARNG), the applicant was appointed as a Reserve warrant officer on 
26 September 2009.  He provided a DA Form 1059, dated 5 November 2010, which shows he attended the warrant officer basic course from 7 July 2010 to 
5 November 2010 and met all the course requirements.

3.  His DD Form 214 (Certificate of Release from Active Duty) shows he was ordered to active duty on 1 December 2010 in support of Operation New Dawn. He served in Iraq from 13 December 2010 to 9 September 2011 and he was honorably released from active duty on 10 October 2011.

4.  His record contains a National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board), dated 18 August 2011, wherein it was recommended that he be promoted to CW2 and be granted Federal recognition.

5.  A DA Form 71 (Oath of Office-Military Personnel), dated 18 August 2011, shows he was appointed as a Reserve warrant officer in the rank of CW2.

6.  Orders 347-1059, issued by the TXARNG, dated 13 December 2011, show the Adjutant General of the TXARNG promoted him to CW2, with an effective date and DOR of 27 September 2011.

7.  In a memorandum to the Adjutant General of Texas, from the NGB, dated     21 October 2011, the Chief, Personnel Policy Division, granted an exception to policy to promote the applicant to CW2.  The memorandum stated the applicant's DOR would be no earlier than the date of the memorandum.  Additionally, this official stated that "the Targeting Officer (131A0) position in unit identification code:  V7XAA, Paragraph:  111, Line: 03, Authorize Grade:  CW3, must remain vacant while the applicant is in a mobilized status." 

8.  His record contains an NGB memorandum (Promotion as a Reserve Commissioned Warrant Officer of the Army), dated 6 March 2012, wherein it stated the Secretary of the Army had promoted the applicant to the rank of CW2 with an effective date and DOR of 5 March 2012.

9.  Special Order Number 76 AR, issued by the NGB, dated 6 March 2012, granted the applicant Federal recognition and promoted him to CW2 with an effective date and DOR of 5 March 2012.

10.  He provides a copy of an ABCMR decision pertaining to CW2 G___‘s request to have his DOR to CW2 changed.  In this case, CW2 G___ was granted the requested relief.

11.  In an advisory opinion, dated 21 March 2013, the Chief, Personnel Division, NGB, Arlington, VA, recommended disapproval of the applicant's request.  The NGB official stated:

	a.  The applicant stated his promotion was delayed due to the policy change for the promotion of warrant officers, dated 14 June 2011.  NGB Order Number 76 AR, dated 6 March 2012, indicated the applicant was federally recognized and recommended for promotion to CW2 with an effective date of 5 March 2012. TXARNG Order Number 347-1059, dated 13 December 2011, promoted the applicant to CW2 with an effective date of 27 September 2011, which signifies his eligibility for promotion.  The DOR to CW2 is not backdated to the eligibility date.

	b.  Personnel Policy Operational Message Number 11-015, dated 14 June 2011, paragraph 2(b), states, in part, "[this policy memorandum] introduces 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 warrant officers and appointments in a higher grade (promotion), by warrant or commission, will be issued by the POTUS.  Requests 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 appointments as a Reserve Warrant Officer of the Army to be completed."

	c.  The delay of which the applicant complains results from a change in the procedures for the promotion of warrant officers that was mandated by the National Defense Authorization Act (NDAA) of 2011, that warrant officer promotions be placed upon a scroll and staffed to the POTUS (delegated to the Secretary of Defense) for approval.  The law took effect on 7 January 2011.  When the State of Texas boarded the applicant for promotion this policy had been in effect for 9 months.  There followed a period during which the procedures for processing warrant officer appointments and promotion scrolls were developed and refined.  Though this process was modeled on the existing process for scrolling officer appointments and promotions, there was still a period during which the warrant officer scrolling process was being perfected.  This developmental process did result in the delay of promotions for all ARNG warrant officers, and probably warrant officers from other components, recommended for promotion during the months immediately following the enactment of this scrolling requirement.  

	d.  The delay in question was not the result of "error" or "injustice" as much as it was the inherent consequences of elevating the appointment and promotion authority for warrant officers to such a high level.  While it is 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 a new scheme mandated by Congress, and not an "error" or "injustice" particular to his case.  The applicant received Federal recognition approximately 90 days after his State order was published.

	e.  Eligibility for promotion does not mean automatic promotion to the next highest grade.  National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions), paragraph 7-2, states in part, "promotions will be based on Department of the Army duty proponent military occupational specialty certification via satisfactory completion or constructive credit of appropriate level of military education; TIG; demonstrated technical an tactical competence; and potential for service in the next higher grade as determined by a Federal Recognition Board.  Promotion will not be used solely as a reward for past performance…"

	f.  The TXARNG does not concur with this recommendation.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that for promotion to CW2, a warrant officer must complete two years minimum service in the lower grade, Warrant Officer Basic Course, 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.

12.  Title 10, U.S. Code, section 1211 (Officers – ARNG of the United States), states when an officer of the ARNG to whom temporary Federal recognition has been extended is appointed as a Reserve for service as a member of the ARNG of the United States, his/her appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.  

13.  National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG Warrant Officer (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 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.

14.  National Guard Regulation 600-101 further states that a WO must complete the minimum years of promotion service as shown in table 7-1 and the education requirements of table 7-2 to attain eligibility for promotion and receive Federal recognition in the higher grade.  Table 7-1 states the minimum TIG for promotion to CW2 is 2 years in the lower grade.  Table 7-2 states the minimum military education requirement for promotion to CW2 is completion of the WOBC, or equivalent certification, within 2 years from date of initial appointment as WO1.

15.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, 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, introduces a requirement that all WO appointments and promotions to CWO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WO's 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.

16.  Memoranda, dated 17 December 2003 and the 14 January 2005, by the former Assistant Secretary of the Army (Manpower and Reserve Affairs (M&RA)) apply to USAR officers and ARNG officers who are ordered to active duty for 90 days or more.  The memoranda states that officers eligible for promotion based on a future vacancy:  

   a.  May be promoted if they can be assigned to the higher graded position within 180 days after completing their current tour of active duty.

   b.  If promoted officers are unwilling or unable to serve in the higher graded position after completing the tour of active duty, then they are transferred to the Individual Ready Reserve.

   c.  Officers in this category must coordinate with their respective States in the case of ARNG officers to determine if they should accept, decline, or delay the promotion based on the future availability of higher graded positions.
   
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant’s effective date as a WO1/W-1 was 26 September 2009.  

2.  The TXARNG promoted him to CW2, with an effective date and DOR of        27 September 2011.

3.  His record contains a NGB Memorandum which stated the Secretary of the Army had promoted him to the rank of CW2 with an effective date and DOR of     5 March 2012.  He was granted federal recognition and promoted to CW2 with a DOR of 5 March 2012.

4.  As a result of the FY11 NDAA, the promotion of a WO1 to CW2 is now issued by the President of the United States and 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 resulted 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.  Moreover, in the applicant's case, the delay was less than 75 days, whereas the anticipated delay was 90 days or more.  While 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 Service or applicant.

5.  However, the available evidence shows he was mobilized in an active duty status effective 1 December 2010.  Memoranda, dated 17 December 2003 and 14 January 2005, by the former Assistant Secretary of the Army established promotion policy for mobilized ARNG officers that allowed for officers to be promoted if they could be assigned to the higher graded position within 180 days after completing their current tour of active duty.

6.  In a memorandum, dated 21 October 2011, the Chief, Personnel Policy Division, NGB, granted an exception to policy to promote the applicant to CW2 with a DOR of "no earlier than the date of the memorandum." 

7.  Any corrections to the applicant's effective date to CW2 would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.  Unfortunately, in view of the foregoing, full relief cannot be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20120013627, dated 25 June 2013.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by showing his DOR (not effective date of promotion) is 21 October 2011 with entitlement to all back pay and allowances.





2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjusting his effective date of promotion to CW2 to 27 September 2011.



      _______ _   __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)                                         AR20150012608





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150012608



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1