BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150017684 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x____ ___x_____ ____x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150017684 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending NGB Special Orders Number 231 AR, dated 27 June 2012, to show his date or rank (DOR) upon his promotion to chief warrant officer two (CW2) as 27 February 2012. 2. The Board further determined the evidence presented is 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 correcting his effective date of promotion to CW2 or paying him any back pay or allowances as a result of these Proceedings. _____________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. BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150017684 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 promotion to chief warrant officer two (CW2) was effective 27 September 2011, instead of 21 June 2012. 2. The applicant states: a. His effective date and date or rank (DOR) for promotion to CW2 should have been 27 September 2011, the date he met the time requirements. He completed all of the requirements for promotion to CW2 on 22 October 2010, with the exception of time in grade. He completed 24 months of time in grade by 26 September 2011; therefore, he should have been automatically promoted with an effective date of 27 September 2012 [sic], which would have been 2 years and one day from the date he was originally appointed as a warrant officer. b. For reasons outside his control, his automatic promotion packet was not processed for Federal recognition until 28 February 2012. After spending several years trying to resolve how this happened, he is appealing for a correction of his effective date and DOR. c. A memorandum from the Idaho Army National Guard (IDARNG), dated 4 April 2013, shows he has been working to get this resolved for some time. He was unaware of the appeal process prior to 13 November 2015. He has been working with his unit and State personnel management office to find out what happened and how it could be fixed. After conducting research, he discovered the Title 32 clause that states, his DOR should have been effective as of the date on which he completed the service in the grade prescribed by the Secretary concerned under Title 10, Section 12242. 3. The applicant provides: * Certificate of Appointment, dated 26 September 2009 * NGB 337 (Oaths of Office), dated 26 September 2009 * Special Orders Number 251 AR, issued by the National Guard Bureau (NGB), Arlington, VA on 15 October 2009 * his appointment memorandum, issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO on 21 April 2010 * Orders 062-026, issued by the IDARNG on 2 March 2012 * Special Orders Number 231 AR, issued by NGB on 27 June 2012 * a memorandum from NGB, dated 27 June 2012, subject: Promotion as a Reserve Commissioned Warrant Officer of the Army * a memorandum for record (MFR) from his S-1, dated 4 April 2013 * three DA Forms 67-9 (Officer Evaluation Report (OER)) * DA Form 67-10-1 (Company Grade Plate (O1 – O3; WO1 – CW2) OER) * two DA Forms 1059 (Service School Academic Evaluation Report), dated 22 October 2010 and 23 September 2014 * an excerpt from Title 32, Section 310 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the ARNG on 9 March 2001. He was honorably discharged on 25 September 2009 and he accepted an appointment as a Reserve warrant officer of the Army, as a warrant officer one (WO1), the following day. 3. He completed the Warrant Officer Basic Course on 22 October 2010. 4. Orders 062-026, issued by the IDARNG on 2 March 2012, show he was promoted to CW2 with an effective date of 28 February 2012. These orders contain the statement, "individual will not wear the grade to which promoted nor be paid in that grade until Federal recognition is confirmed." 5. A memorandum from NGB, dated 27 June 2012, Subject: Promotion as a Reserve Commissioned Warrant Officer of the Army, shows he was promoted to CW2 in the Reserve of the Army for service in the Army National Guard of the United States (ARGNUS), effective 21 June 2012. 6. Special Orders Number 231 AR, issued by NGB on 27 June 2012, show he was granted Federal recognition for promotion to CW2 with an effective date and DOR of 21 June 2012. 7. The applicant provides an MFR from the Adjutant of the IDARNG, dated 4 April 2013, wherein the Adjutant recommends the applicant be granted relief in the form of an adjustment to his "effective date of grade." He contends the applicant made every effort to submit and complete his requirements before his promotion availability date and relied on his higher headquarters to submit his packet as per standard operating procedures. Through no fault of his own, his promotion packet was not received at the Federal level at the appropriate time for his promotion to occur when he was eligible. The S-1 further states the applicant's promotion packet was not received at the Federal level at the appropriate time for his promotion to occur when he was eligible. 8. In the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB, Arlington, VA. a. The advisory official recommends partial approval of the applicant's request. b. The advisory official states the applicant received his initial appointment as a warrant officer in the IDARNG and completed Basic Officer Leadership Course (BOLC) on 22 October 2010. The applicant met his eligibility requirements for promotion on 26 September 2011, received his recommendation for promotion on 7 February 2012, and received the Federal Recognition Board (FRB) endorsement on 27 February 2012. He was promoted to CW2 on 21 June 2012, nine months after his eligibility date. c. During this time period, the National Defense Authorization Act (NDAA) of 2011 required processing a scroll for Federal recognition and not automatic promotions, which came in effect due to the NDAA of 2013. With the change introduced by NDAA 2011, processing scrolls for warrant officers were delayed significantly until a course of action had been implemented. It would be fair and appropriate to adjust the Soldiers DOR and effective date based on the date the Soldier received FRB endorsement, and not an automatic promotion based on eligibility date prior to NDAA 2011. d. Recommend partial approval, adjusting the DOR and effective date to 27 February 2012, to include back pay. e. This advisory opinion was coordinated with the NGB FRB and Warrant Officers Branch. The IDARNG concurs with this recommendation. 9. On 19 October 2016, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Matters) provides procedures for processing all applications for Federal recognition and announces policy dealing with civilian and military education requirements for promotion. Chapter 8 (Promotion for Other Than General Officers) shows the minimum requirements for promotion to CPT/O-3 are 2 years of time in grade and completion of the Officer Basic Course. Promotion criteria will be based on efficiency, time in grade, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade. Promotion will not be used solely as a reward for past performance. It does not outline the specifics of a timeline for scroll completion after receipt by the NGB. 2. Tile 10, USC, section 12241, as amended, provides that appointments made in a permanent reserve grade of a chief warrant officer shall be made in the same manner as prescribed for regular warrant officer grades by Title 10, U.S. Code, section 571(b). This provision states appointment in the grade of regular warrant officer grades shall be made by the President. This authority has been delegated to the Secretary of Defense. 3. Title 10, U.S. Code, section 14308(f) states the effective date of a promotion of a Reserve commissioned officer in the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date in which such Federal recognition in that grade is so extended. DISCUSSION: 1. The applicant's request for correction of his records to show his promotion to CW2 was effective 27 September 2011, instead of 21 June 2012, was carefully considered. 2. The applicant was initially appointed as a WO1 on 26 September 2009 and completed the BOLC on 2 October 2010. He met the minimum time-in-grade requirements for promotion to CW2 on 26 September 2011. 3. The IDARNG promoted him to CW2 effective 28 February 2012, pending Federal recognition orders. He was granted Federal recognition for his promotion to CW2 on 21 June 2012. The IDARNG and NGB recommend his effective date and DOR be adjusted to 27 February 2012. 4. The effective date of Federal recognition cannot be modified because that would effectively amend the decision of the Secretary of Defense, which is beyond the authority of both the NGB and the ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017684 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017684 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2