BOARD DATE: 8 April 2014 DOCKET NUMBER: AR20130018517 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 correction of his date of rank (DOR) to 31 July 2012. 2. The applicant states his state promotion effective date was 31 July 2012 with his promotion packet being sent forward on 20 May 2012, however it still took until 6 November 2012 for his promotion to go through the process at the National Guard Bureau (NGB) and therefore his pay effective date (PED) and DOR was adjusted to 6 November 2012. He needs his DOR changed to 31 July 2012, as it will affect his next promotion and timetable for submission. 3. The applicant provides copies of - * Colorado Army National Guard (COARNG), Joint Force Headquarter (Detachment 1) Orders 157-006, dated 05 June 2012, * 9 November 2012 Army National Guard Federal Recognition Orders Number 395 AR CONSIDERATION OF EVIDENCE: 1. On 31 July 2010, the applicant, with prior enlisted COARNG and Active Guard Reserve (AGR) service, was commissioned a Colorado Army National Guard warrant officer one (W-1). Federal Recognition was granted on 27 August 2010 with a PED and DOR of 31 July 2010. 2. On 5 June 2012, the COARNG promoted the applicant to chief warrant officer two (CW-2). They issued Joint Force Headquarter (Detachment 1) Orders 157-006, dated 05 June 2012, showing his promotion to CW-2 with a PED and DOR of 31 July 2012. 3. His file was forwarded to the NGB for Federal Recognition. 4. On 9 November 2012 Army National Guard Federal Recognition Orders Number 395 AR granted the applicant Federal Recognition of his state promotion to CW-2 with a PED and DOR of 6 November 2012. 5. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB. It was noted that the National Defense Authorization Act of 2011 (2011 NDAA), dated 7 January 2011, changed the statute governing the promotion of warrant officers by adding the requirement that the Secretary of Defense appoint or promote warrant officers to the next higher grade. This process takes on the average 120 days. With the change of statute the Army Board for Correction of Military Records no longer has the authority to correct the effective date of pay (PED). Additionally, Army Regulation 6135-155 (Promotion of Commissioned Officers and Warrant Officers) states that a warrant officer's DOR and their PED are one and the same. The State of Colorado concurred with the opinion. 6. A copy of the advisory opinion was forwarded to the applicant. There is no response from the applicant in the available records. 7. ARNG Human Resources Command (HRC) Policy Memorandum Number 10-068 (Suspense for Submission of Applications for the Federal Recognition of Army National Guard Officers in a Higher Grade by way Unit Vacancy Promotion) states: * promotion of an ARNG commissioned or warrant officer is accomplished by the State or Territory to which the officer is assigned * Federal recognition of that promotion is facilitated by one of two specific board proceedings and boards may be convened – * at the State level in connection with a unit vacancy promotion when an officer is being considered to fill a particular vacancy before (emphasis added) the officer is approaching their maximum time in grade, or * convened by the Army HRC when a group of officers are approaching their maximum time in grade * the Chief of the NGB is required to notify officers that they are in the zone of consideration for a mandatory board at least 90 days prior to the convening date of that board * in order not to prejudice other officers scheduled to appear before the mandatory board unit vacancy promotion packets must be submitted 90 days prior the convening date of any DA mandatory promotion board * requests for a waiver of the provisions based on the mere fact that compliance of the submission date may cause the Federal recognition of a deserving Soldier to be delayed will not be considered sufficient to obtain the waiver 8. Title 10, U.S. Code (USC), section 14308(f), states the effective date of a promotion of a Reserve commissioned or warrant officer in the Army, who is extended Federal recognition in the next higher grade in the ARNG, shall be the date on which such Federal recognition in that grade is so extended. 9. Title 10, USC, section 12203, provides that appointments of Reserve commissioned and warrant officers in the grades of LTC and below shall be made by the President. This authority was delegated to the Secretary of Defense via Section 1, Executive Order 13384, dated 27 July 2005. 10. Based on advice from the Department of Justice, that law prohibits redelegation below the Secretary of Defense of the President's authority to appoint military officers, authority granted to the Secretaries of the Military Departments in Secretary of Defense memorandum, dated 9 December 1985, subject: Redelegation of Authority Under Executive Order 12396, to appoint warrant officers under Title 10, USC, section 642, was rescinded with the enactment of the 2011 NDAA, 7 January 2011. All military appointments under Title 10, USC, section 12203, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 6 January 2011, must also be submitted to the Secretary of Defense. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his PED and DOR to CW-2 should be adjusted to 31 July 2012 was carefully considered; however, there are some errors the ABCMR may not correct. 2. The ABCMR may only correct Department of the Army records. The Board has no authority to correct records created by the other Services or the Department of Defense. 3. Any correction by the ABCMR must comport with all pertinent laws. The Board may not ignore any legal requirement contained in, or an outcome dictated by, any higher authority or governing statute. However, the ABCMR may accomplish a correction by changing an operative fact in the record, thereby making a correction in compliance with that statute. Where officer promotion issues are involved, that require approval by the Secretary of Defense, the Board's hands are tied. 4. Consequently, based on the authorities cited above, any correction to the PED of the applicant's promotion would, in fact, amend the Secretary of Defense's action and, therefore, goes beyond the authority of this Board. 5. Further, regulations state that a warrant officer's PED and DOR are one in the same; therefore there is not provision to grant the applicant a correction of his DOR. 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) AR20130018517 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130018517 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1