IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160004120 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: 12 December 2017 DOCKET NUMBER: AR20160004120 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 showing his date or rank (DOR) upon his promotion to chief warrant officer three (CW3) as 17 December 2014. 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 records to show an earlier effective date of promotion to CW3, or that pertains to paying him back pay or allowances resulting from an adjustment to his effective date of promotion. ____________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: 12 December 2017 DOCKET NUMBER: AR20160004120 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 three (CW3) was effective 20 June 2014 instead of 11 June 2015. 2. The applicant states, he was informed that the scroll pertaining to his appointment was lost by the National Guard Bureau (NGB) for a considerable amount of time, which delayed his appointment and promotion to CW3. His promotion date should reflect what it would have been had the NGB not lost his scroll and he should receive back pay for the time that he would have held the rank. Due to the NGB's loss of the scroll, the Texas Army National Guard (TXARNG) had to resubmit a new appointment order to continue the process and send the promotion packet to the Secretary of Defense for signature. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 1 November 2012 * Orders 270-001, issued by the TXARNG on 27 September 2013 * Orders 171-071, issued by the TXARNG on 20 June 2014 * a memorandum from NGB, dated 9 December 2014, subject: Appointment as a Reserve Commissioned Officer of the Army * Special Orders Number 122 AR, issued by NGB on 16 June 2015 * a memorandum from NGB, dated 16 June 2015, subject: Promotion as a Reserve Commissioned Warrant Officer of the Army CONSIDERATION OF EVIDENCE: 1. Following prior service in the Regular Army, the applicant was appointed as a Reserve commissioned warrant officer of the Army on 19 September 2013 in the rank of chief warrant officer two (CW2). 2. Orders 171-071, issued by the TXARNG on 20 June 2014, show the applicant was promoted to CW3 effective 20 June 2014. These orders contain the statement, "individual will not be paid for promoted rank until Federal recognition confirmed." 3. A memorandum from NGB, dated 16 June 2015, subject: Promotion as a Reserve Commissioned Warrant Officer of the Army, shows the applicant was promoted to CW3 in the Reserve of the Army for service in the Army National Guard of the United States (ARGNUS), effective 11 June 2015. 4. Special Orders Number 122 AR, issued by NGB on 16 June 2015, show the applicant was granted Federal recognition for promotion to CW3, with an effective date and date of rank (DOR) of 11 June 2015. 5. In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, NGB, Arlington, VA. a. The advisory official recommends partial approval of the applicant's request. b. The applicant was appointed into the TXARNG as a CW2 effective 19 September 2013. TXARNG order number 171-071, dated 20 June 2014, shows he was selected for promotion with an effective date of 20 June 2014. He was granted Federal recognition and was promoted to CW3 per special order number 122 AR, effective 1 June 2015. c. Upon coordination with the ARNG Federal recognition section, it was determined that had the Soldier's promotion been handled properly at NGB, he would have been assigned to scroll number U-5-15. This scroll was signed on 17 December 2014. d. The NGB Federal recognition section identifies the timeframe for assignment of a scroll to be approximately two to three weeks and the overall processing time for a scroll to be completed is approximately six to seven months. Upon further coordination, it was determined that due to a change in their tracking system, the processing of Federal recognition actions was slowed down considerably during this time. Due to no fault of the Soldier's, an unreasonable delay occurred in the process of his promotion. Therefore, this office recommends that he be granted an effective date of 17 December 2014, the day scroll number U-5-15 was signed. 6. The applicant was provided a copy of the advisory opinion on 10 October 2017, 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) states, 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. Title 10, U.S. Code, 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 was delegated to the Secretary of Defense but was not further delegated to the Service Secretaries. 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 requests correction of his records to show he was promoted to CW3 effective 20 June 2014, instead of 11 June 2015. 2. The TXARNG promoted him to CW3 effective 20 June 2014, pending Federal recognition orders. He was granted Federal recognition for his promotion to CW3 on 11 June 2015. The NGB recommends his effective date be adjusted to 17 December 2014, due to a change in their tracking system that slowed down the processing of Federal recognition actions. 3. 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) AR20160004120 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004120 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2