IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20160005119 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20160005119 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20160005119 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 records to show his date of rank (DOR) as 20 May 2015 for promotion to chief warrant officer four (CW4) in the Florida Army National Guard (FLARNG), instead of the current date of 23 July 2015. Based on this change, he also requests back pay. 2. The applicant states, in effect: * according to National Guard Regulation (NGR) 600-101 (Warrant Officers Federal Recognition and Related Personnel Actions), paragraph 9-10 (Appraisal of Promotion Qualifications), promotion packets cannot be examined by a Federal Recognition Board (FRB) prior to 120 days from the completion of the prescribed time-in-grade (TIG) requirements; for the applicant this would have been 20 May 2015 * his promotion packet was submitted to the FRB, and the board was convened on 23 January 2015; he was recommended for promotion by the FRB and his packet was sent to the National Guard Bureau (NGB) * his packet was added to their tracking list on 27 January 2015, and remained there until his promotion on 23 July 2015 (a total of 178 days) * his DOR and effective date of promotion are both 23 July 2015, which is 63 days after his TIG eligibility date * prior to this, promotions were generally being processed in a timely manner, and the 120-day rule was not causing undue delay * while the actual cause for the delay in his case is not clear, he suspects part of the problem might be the loss of government funding allocated for the contractor who was responsible for the Federal recognition process * he feels it is unjust that the 120-day rule was not followed, and asserts administrative delays/long processing times should not dictate when an officer is promoted; a promotion for which he has worked very hard to earn 3. The applicant provides: * Orders Number 027-042, dated 27 January 2015 * Special Orders (SO) Number 165, dated 28 July 2015 * NGR 600-101, dated 3 September 2014 CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted and commissioned officer service in the FLARNG, as well as commissioned service in the U.S. Army Reserve, he was appointed as a warrant officer one (WO1) in the FLARNG, and executed his oath of office on 14 January 2004. 2. Orders Number 141-037, dated 21 May 2009, issued by the FLARNG, promoted him to CW3 effective 20 May 2009. SO Number 131 AR, dated 28 May 2009, issued by the NGB, promoted him to CW3 effective 20 May 2009 (Federal recognition). 3. Orders Number 027-042, dated 27 January 2015, issued by the FLARNG promoted the applicant to CW4 with an effective date of 23 January 2015. SO Number 165, dated 28 July 2015, issued by the NGB, promoted him to CW4 effective 23 July 2015 (Federal recognition). 4. In an advisory opinion, dated 17 May 2016, an official from the FLARNG essentially stated the following: a. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-21 (Effective Dates), subparagraphs b(1) and (2), clearly gives the requirements for the effective date of promotion. (1) "The effective date and date of promotion will be no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer is assigned to the position, whichever is later. If not occupying the position, assignment of selectees to position vacancies will take place immediately on announcement of the results of the board." (2) "Unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade. When the board approval or, if required, Senate confirmation is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher graded position. If the officer voluntarily delays promotion and is later assigned to a higher graded position during the period of delay, the effective date and date of promotion become the date of assignment to the higher graded position." b. Due to the information provided in this regulation, the FLARNG has no authority to change the DOR of the applicant. 5. The NGB also provided an advisory opinion, dated 1 June 2016. The official recommended disapproval of his request, and stated, in effect: a. He submitted his promotion packet in January 2015 and the promotion board (FRB) was held on 23 January 2015. The FLARNG promoted him to CW4 in promotion order 027-042, dated 27 January 2015. This order reflected an effective date of 23 January 2015. His promotion packet was then forwarded to NGB to undergo the scrolling process for Federal recognition. He was Federally recognized on 23 July 2015 in SO Number 165, dated 28 July 2015. b. The applicant requests the adjustment of his DOR to 23 May 2015 [sic, 20 May 2015], which is the date his promotion packet was eligible to be examined, in accordance with AR 600-101, paragraph 9-10. Although the applicant views the 120-day rule as an injustice, the rules outlined in NGR 600-101 apply to all ARNG warrant officers. c. All commissioned officer promotions are not effective until Federal recognition has been extended by the President of the United States (POTUS). POTUS has delegated this authority to the Secretary of Defense. The 120 days reflected in the regulation indicate when warrant officers are eligible to be boarded for promotion and is done to help expedite the process. This in no way guarantees promotion on the eligibility date. All officers who undergo the scrolling process share in the same delays experienced by the applicant. Thus, NGB recommends denial of the applicant's request. d. The information in this advisory was coordinated with the NGB Warrant Officer Policy Division and the FLARNG concurs with the recommendation. 6. The Case Management Division of the Army Review Boards Agency provided the applicant with copies of the advisory opinions. While he offered no response to the advisory by the NGB, with regard to the FLARNG advisory, he essentially stated: a. He agrees the FLARNG does not have the right to change his DOR. He is requesting relief from the Army Board for Correction of Military Records because this is a Federal recognition process. He feels the FLARNG completed their requirement to process his promotion packet. b. His concern is the Federal recognition process was not completed within the 120 days that he was authorized for promotion so that it would be effective 20 May 2015. c. He contends he met the requirements of every military regulation to ensure his promotion was completed within the 120 days. The Federal recognition process should also follow regulatory guidelines. REFERENCES: 1. NGR 600-101 prescribes policies and procedures for ARNG WO personnel management. Chapter 7 states that promotion of WOs in the ARNG is a function of the State. a. 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 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. 2. Title 10, U.S. Code, sections 571b and 12241b (implemented by NDAA for FY 2011), introduced a new requirement wherein all WO appointments and promotions to CWO grades in the ARNG had to be made by the President of the United States. As a result, effective 7 January 2011, the law mandated all initial appointments of WOs and promotions to higher grades by warrant or commission to be issued by the President (as delegated to the Secretary of Defense). Before being sent to the Secretary of Defense, requests for appointment were first required to be staffed through the Department of the Army Office of the Deputy Chief of Staff, G-1. This requirement has added 90 to 120 days (or more in some instances) to the process for approval for appointments or promotions. DISCUSSION: 1. The record shows an FRB found him professionally qualified for promotion to CW4, and the State published a promotion order on 27 January 2015 that reflected an effective date of 23 January 2015. His promotion was Federally recognized in SO Number 165, dated 28 July 2015, and the orders showed an effective date of 23 July 2015. 2. As a result of the NDAA of 2011, chief warrant officer appointments to the next higher grade required action by the President of the United States, as delegated to the Secretary of Defense. This new requirement resulted in delays of 120 days or more for all chief warrant officer promotions. The delay was therefore not the result of an error or an injustice, but rather a consequence of elevating the appointment and promotion authority for WOs to such a high level. As such, the applicant was no more disadvantaged than any other commissioned or warrant officer whose promotion took longer because of the scrolling requirement. . 3. With regard to back pay, the date when a Soldier receives pay based on a promotion is the result of the effective date, not the DOR. Even if his DOR had been adjusted, the Board has no authority to change the effective date of promotion. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005119 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005119 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2