IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150018649 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 IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150018649 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 Special Orders Number 374 AR, issued by the National Guard Bureau on 19 October 2012 to show "Effective Date 17 October 2012, Date of Rank 27 June 2012." 2. The Board further determined that 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 amending the applicant's effective date of promotion and date of rank to Chief Warrant Officer Two to 11 May 2012. ___________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: 13 April 2017 DOCKET NUMBER: AR20150018649 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 effective date of promotion and date of rank to chief warrant officer two (CW2) in the Maryland Army National Guard (MDARNG) from 17 October 2012 to 11 May 2012. 2. The applicant states: a. His promotion to CW2 was delayed due to paperwork errors/failure of individuals to perform the tasks required of them. He was eligible for promotion on 11 May 2012 but was not promoted and started receiving pay for the rank until October 2012, costing him tax free pay in a combat zone and delaying future promotions. Due to no fault of his own, his promotion was held up for over 6 months as the paperwork was processed. He filed an Inspector General (IG) complaint to correct this discrepancy showing that all required paperwork was submitted for his promotion as far in advance as possible. Despite his efforts, his application was not processed in a timely matter by the responsible parties. b. Although it has been more than three years, time was lost as he was deployed for a year right when this happened, from 31 May 2012 to 13 June 2013. While deployed, he went through the proper channels for correction, utilizing his chain of command and even filed an IG complaint. Through these channels, he was told that there was nothing that could be done and that even if he did file a complaint through the Army Review Board complaints like his were not being reimbursed. After speaking with the commander from another unit he stated they were having success and to file it anyways. 3. The applicant provides: * DA Form 1559 (IG Action Request) * Orders 180-083, dated 28 June 2012 * Promotion memorandum * National Guard Bureau (NGB) Appointment Orders * Oath of Office - Military Personnel 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. Having had prior enlisted service in an aviation military occupational specialty (MOS), the applicant completed Warrant Officer Candidate School from 1 April to 10 May 2010. 3. He was appointed as a Reserve commissioned officer of the MDARNG and executed an oath of office on 11 May 2010. The NGB published Special Orders (SO) Number 131 AR extending him Federal recognition for initial appointment effective 11 May 2010. 4. He entered active duty on 11 May 2010 and completed Initial Entry Rotary Wing Course - CH-47D Track. He was honorably released from active duty on 12 January 2012. 5. On 11 June 2012, the NGB published SO Number 207 AR awarding him MOS 154C (CH-47 Pilot). 6. On 27 June 2012, a Federal Recognition Board convened by the MDARNG and determined the applicant was physically, morally, and professionally qualified for appointment as a CW2 and recommended he be granted Federal recognition. 7. On 28 June 2012, MDARNG published orders promoting him to CW2 on 27 June 2012, to be effective the date permanent federal recognition orders are published. 8. On 19 October 2012, the NGB published SO Number 374 AR extending him Federal recognition for promotion to CW2 with an effective date and date of rank as 17 October 2012. 9. Meanwhile, he entered active duty on 24 May 2012 and subsequently served in Afghanistan from 5 August 2012 to 4 May 2013. He was honorably released from active duty on 16 June 2013. 10. The Army Review Boards Agency requested and the NGB provided an advisory opinion on 13 January 2017 in the processing of this case. The NGB advisory official stated: a. The NGB recommends partial approval of the applicant's request to have his date of rank and effective date of promotion to CW2 be adjusted to 11 May 2012. The applicant received his initial appointment as a Warrant Officer in the MDARNG on 11 May 2010 and he completed the Basic Officer Leadership course on 12 January 2012. He met his eligibility requirements for promotion on 11 May 2012, received his recommendation for promotion on 11 April 2012, and Federal Recognition Board (FRB) endorsement on 27 June 2012. He was promoted to CW2 on 17 October 2012, five months after his eligibility date. b. National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions), dated 1 October 1996, 9-10a, states, "Warrant officers may be examined for promotion not earlier than three (3) months in advance of completing the prescribed requirements of chapter 7 this regulation so that, if recommended by a FRB, promotion may be effected on the date of promotion requirements are met. "[Applicant] received his initial commander's endorsement on 11 April 2012, and a subsequent endorsement on 15 May 2012. This endorsement, a prerequisite to an FRB, clearly displays the Unit's intent to process the Soldier's promotion packet to meet his Promotions Eligibility Date (PED). Unfortunately, due to an administrative error, the FRB was not completed until 27 June 2012. It would be fair and appropriate to adjust the Soldiers date of rank and effective date based on the date the Soldier received FRB endorsement to coincide with early processing, referenced above. c. The NGB recommends partial approval, adjusting the date of rank and effective date to 27 June 2012, to include back pay. This advisory opinion was coordinated with the National Guard Bureau Federal Recognitions Branch and Warrant Officer branch. The MDARNG concurs with this recommendation. 11. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit comments and/or a rebuttal. As of 21 March 2017, he did not respond. REFERENCES: 1. Title 10, U.S. Code, sections 571b and 12241b introduced a requirement that all WO appointments and promotions to chief warrant officer 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 of warrant or commissioned officers, will be issued by the President. Requests for appointment will be staffed through the Department of the Army, Deputy Chief of Staff, G-1. 2. Title 10, U.S. Code, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited. The ABCMR may only correct Army records. The Board has no authority to correct records created by the other Services or the Department of Defense. 3. NGR 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officer personnel management. Paragraph 9-10a, states, "Warrant officers may be examined for promotion not earlier than three (3) months in advance of completing the prescribed requirements of chapter 7 this regulation so that, if recommended by a FRB, promotion may be effected on the date of promotion requirements are met." 4. NGB Policy Memorandum Number 11-105, dated 14 June 2011, pertains to Federal recognition of warrant officer appointments in the ARNG. This memorandum states all initial appointments of warrant officers and appointments in a higher grade (promotion) by warrant or commission will be issued by the President effective 7 January 2011. 5. An NGB information paper, dated 22 July 2011, subject: National Defense Authorization Act (NDAA) 2011 Changes to Warrant Officer Federal Recognition Process, states: a. Prior to 7 January 2011, all warrant officer Federal recognition appointments and promotions were approved by the Secretary of the Army. The Secretary of the Army delegated this authority to the Director, NGB, and NGB published all Federal recognition orders for warrant officers. b. On 7 January 2011, NDAA 2011 was signed creating a new requirement that all warrant officer appointments and promotions would have to be signed by the President. This new requirement removed NGB authority to approve and publish all warrant officer Federal recognition orders. All warrant officer appointments and promotions are now placed on a scroll and processed through various channels from the Department of the Army G-1 up to the Secretary of Defense. c. Before NDAA 2011, all ARNG warrant officer promotions effective date of rank were the date of the State promotion orders as stated in the Federal Recognition Board recommendations. DISCUSSION: 1. The applicant requests correction of her DOR and effective date of promotion to CW2 from 17 October 2012 to 11 May 2012. 2. The applicant was appointed in the ARNG as a warrant officer on 11 May 2010. He was eligible for promotion to CW2 on 11 May 2012. Eligible does not mean automatic promotion. He was considered by an FRB in June 2012 and the State published orders promoting him to CW2 on 27 June 2012, to be effective the date permanent federal recognition orders are published. 3. The change in the law, introduced by NDAA 2011 did result in the delay of the promotions of all ARNG warrant officers, and probably warrant officers from other components, recommended for promotion. As such, on 19 October 2012, the NGB published orders extending him Federal recognition for promotion to CW2 with an effective date and date of rank as 17 October 2012. This delay in the applicant's promotion clearly resulted from a statutory change in procedures for promotion of warrant officers requiring warrant officers to be placed on a scroll and staffed to the Secretary of Defense for approval. 4. The applicant's effective date of promotion (which also drives pay) can only be changed by amending the date Federal recognition was granted by the Secretary of Defense. The ABCMR has no jurisdiction over Department of Defense records and cannot make this type of correction. 5. Any correction by the ABCMR must comport 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, 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 often tied. Consequently, any correction to his effective date of promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board. 6. However, there are no statutory prohibitions regarding the date of rank. The Board does have authority to amend a date of rank (which does not affect pay and allowances but establishes the promotion eligibility date for the next higher grade of an officer). As the FRB recommended him for promotion on 27 June 2012 (not 11 May 2012 as he contends), and the State published a State promotion order on that date, it seems appropriate and logical to amend his date of rank as such. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018649 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018649 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2