IN THE CASE OF: BOARD DATE: 8 October 2013 DOCKET NUMBER: AR20130010428 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, an adjustment of the effective date/date of rank for his Federal recognition order promoting him to CW2 from 11 August 2011 to 7 April 2011. 2. The applicant states his current date of rank for CW2 is 11 August 2011. He was appointed a warrant officer (WO1) one on 7 April 2009. He personally believes this should be corrected for several reasons. First, on 3 January 2013, the Fiscal Year (FY) 13 National Defense Authorization Act (NDAA) was signed into law correcting the error that caused the delay in his promotion to CW2. Second, he believes the injustice to him and many other National Guard WO's promoted in FY 2011 should be fixed because the delay in their promotions was totally out of their control. It resulted because the leadership failed to identify the need for, and to implement changes in, the promotion process in a timely manner when the NDAA was signed into law on 7 January 2011. The National Guard Bureau (NGB) did not recognize the change until 10 February 2011. His packet was sent from his State (Kentucky) to the NGB on 16 February 2011. He had been very proactive on his promotion packet and ensured it was submitted to his Brigade (4 January 2011) and State (2 February 2011) well in advance to ensure he was promoted on time (7 April 2011). He was placed on WO Scroll 02-11, the first scroll which had to go through the complete process and was used as a guinea pig because the new process was being designed on the go. It wasn’t until 26 July 2011 that official guidance was published (ARNG-HRH Policy Memorandum #11-045) on how the packets needed to be constructed and submitted. As an Active Guard Reserve (AGR) Soldier, this delay greatly affected his pay, and his date of rank being delayed for 4 months has caused delays in his progression as a Soldier. He has had a tactical officer packet turned down because of his lack of time in grade (TIG). He has to wait until the spring of next year to attend the WO Advanced Course because that is the best time of year for him to attend. This year he did not meet the TIG requirement so he must wait until next spring. 3. The applicant provides copies of: * Memorandum, NGB, Policy Memorandum # 11-45, dated 26 July 2011 * Information Paper, NDAA 2011, Changes to WO Federal Recognition Process, dated 22 July 2011 * Email communications dated between 4 January and 30 August 2011 * House Record (HR) 4310, page 87 CONSIDERATION OF EVIDENCE: 1. A DA Form 71 and NGB Form 337, as filed in the applicant's Army Military Human Resource Record (AMHRR), indicate that he took his oath of office as a warrant officer one (WO1) on 7 April 2009. 2. Special Orders Number 162 AR, NGB, dated 2 July 2009, announced the applicant's initial appointment as a WO1 with an effective date of 7 April 2009. 3. Special Orders Number 188 AR, NGB, dated 16 August 2011, announced the applicant's promotion to CW2 with an effective date of 11 August 2011. 4. National Guard Regulation (NGR) 600-101 (Warrant Officers (WO's) - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG WO personnel management. a. Chapter 7 states that promotion of WO's 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. b. 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. c. A WO must complete the minimum years of service as shown in Table 7-1 of NGR 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade. Table 7-1 states the minimum time in grade for promotion to CW2 is 2 years in the lower grade. 5. NGB Policy Memorandum 11-015, Subject: Federal Recognition of WO's 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 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, 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. 6. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, wherein a recommendation was made to disapprove the applicant's request. a. The NGB stated that an NGB memorandum, dated 16 August 2011, indicated the applicant was eligible for promotion to CW2 and was accordingly so recommended. The Kentucky ARNG published orders promoting him to CW2 with an effective date and date of rank of 7 April 2011. b. Personnel Policy Operational Message number 11-015, dated 14 June 2011 stated that all WO appointments and promotions to chief WO grades in the ARNG of the United State were to be made by the President of the United States. This requirement may add 90 or more days to the process of approval for appointment as a Reserve WO. c. The delay of which the applicant complains resulted from a change in the procedures for the promotion of WO's that was mandated in the NDAA of 2011. WO promotions had to be placed on a scroll and staffed to the President of the United States (delegated to the Secretary of Defense) for approval. The law became effective 7 January 2011. There followed a period during which the procedures for processing WO appointment and promotion scrolls was developed and refined. Though this process was modeled on the existing process for scrolling commissioned officer appointments and promotions, there was still a period which the WO scrolling process was being perfected. This developmental process resulted in delay of promotions for all ARNG WO's. d. The delay in question was not the result of an error or injustice as much as it was the inherent consequence of elevating the appointment and promotion authority for WO's to the level of the President of the United States. e. Eligibility for promotion does not mean automatic promotion to the next highest grade. NGR 600-101 states that promotions will be based on Department of the Army duty proponent military occupational specialty certification by satisfactory completion of the appropriate level of military education (or constructive credit); time in grade, demonstrated technical and 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. The NGB recommended disapproval because the applicant's promotion packet was submitted late. 7. On 4 September 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut. No response was received. 8. The applicant submitted a copy of the FY 2013 change to the NDAA concerning Federal recognition of WO's promoted to CW2. The change essentially states that for those WO's holding an active status, Federal recognition would be automatically extended in the grade of CW2 with an effective date on which the officer had completed the service in the grade prescribed by the Secretary concerned. The law was not made retroactive. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that his effective date and date of rank for promotion to CW2 should be adjusted from 11 August 2011 to 7 April 2011. 2. The available evidence clearly shows the applicant's unit promoted him to CW2 with an effective date and date of rank of 7 April 2011. However, the NGB contends that his promotion packet was submitted late, but did not specify the exact date of submission. 3. As a result of the 2011 NDAA, the promotion to CW2 is now issued by the President of the United States and is delegated to the Secretary of Defense. a. The delay in the applicant's promotion was due to the changes mandated by the 2011 NDAA requiring 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. 4. The ABCMR may only correct Army records. The Board has no authority to correct records created by other Services or the Department of Defense. Promotion to CW2 requires approval by the Secretary of Defense. 5. Any correction by the ABCMR must comply 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 and 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 tied. 6. Consequently, based on the authorities cited above, any correction to the applicant's promotion to CW2 would go beyond the authority of this Board. 7. The FY 2013 change to the 2011 NDAA now precludes WO's from being denied a more timely promotion to CW2. Unfortunately for the applicant, this law is not retroactive and cannot be used as an authority for amending his promotion dates. 8. In view of the foregoing, the applicant's request should be denied. 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) AR20130010428 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130010428 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1