RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070009331 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.




Director



Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

Member
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he receive credit for Active Duty for Special Work (ADSW) he performed past his mandatory removal date (MRD) of 13 July 2004.

2.  The applicant states he was on an ADSW tour when reached age 60 on 13 July 2004; however, he received permission to continue to serve an ADSW tour through 30 September 2006.  When he retired, he was informed that no Federal recognition orders had been published to cover his ADSW continuation.  He finds he cannot receive retired pay for his ADSW tour beyond 13 July 2004.

3.  The applicant provides:

	a.  A self-authored 19 June 2007 letter.

	b.  A 4 January 2007 memorandum from the Chief, Personnel Policy and Readiness Division, National Guard Bureau (NGB), Arlington, VA to the Chief, NGB.  The memorandum requests retroactive extension of the applicant beyond his mandatory removal date (MRD).  It points out that the applicant's State Adjutant General erroneously believed approval resided with the state and a request was never forwarded to Headquarters, NGB.

	c.  A 4-page personnel document detailing the applicant's service.

	d.  A 27 November 2006 memorandum from The Adjutant General, California Army National Guard (CAARNG), to the Chief, NGB requesting retroactive extension of the applicant beyond his MRD.

	e.  A 29 April 2004 memorandum from The Adjutant General, CAARNG to the applicant's unit commander.  The memorandum approves the unit's request to extend the applicant's service beyond age 60 to 30 September 2006.

	f.  A document entitled "Retention Beyond Age 60 Checklist" with transmittal.

	g.  DFAS Forms 702 (Military Leave and Earning Statement) showing the applicant served, and was paid through September 2006.


CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Chief Warrant Officer Four (CW4).  He served with the CAARNG.  His final duty assignment was an ADSW tour which was due to expire on 13 July 2004, his MRD (his 60th birthday).

2.  The State of California desired to retain the applicant on his ADSW for an additional 2 years and 2 months beyond his MRD.  This would make his new MRD 12 September 2006.  The Adjutant General of California approved the extension and the State Headquarters assumed his Federal recognition would continue without interruption.  

3.  The applicant served his extended ADSW tour and the State of California issued retirement orders and Federal recognition withdrawal orders with effective dates of 30 September 2006.  These orders were subsequently corrected to show the applicant's actual MRD of 12 September 2006.

4.  Upon retirement, the applicant began receiving retired pay, but he was not credited with service from 14 July 2004 through 12 September 2006 because no Federal recognition orders had been published extending his Federal recognition beyond his original MRD.  Attempts were made in late 2006/early 2007 to retroactively approve the applicant's extended ADSW tour, but without success.

5.  In the In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy and Readiness Division, National Guard Bureau (NGB), Arlington, VA which recommends approval of the applicant's request.  The opinion points out that California was operating under the assumption the State Adjutant General had final approval authority.  The State, therefore, failed to submit a request for Federal recognition orders and Headquarters, NGB did not publish any.  The applicant was provided an opportunity to respond to the advisory opinion, and he concurred with the NGB's recommendation to grant relief.

6.  National Guard Regulation (NGR) 600-101 (XX) provides, in part, that warrant officers qualified for retired pay at age 60 may be retained in an active status until they reach an age of 62 years and 2 months.  State Adjutants General are the approving authority for retention of CW4s; however, the approved retention packet must be forwarded to the NGB for the publication of Federal recognition orders or the warrant officer will not receive service credit for retired pay purposes.


DISCUSSION AND CONCLUSIONS:

1.  The applicant received approval for retention on active duty beyond his MRD. The CAARNG did not forward the retention approval packet to the NGB for publication of Federal recognition orders.  When the applicant was separated on 12 September 2006 and transferred to the Retired Reserve, he did not receive credit for the additional 2 years and 2 months of service.

2.  NGR 600-101 provides that State Adjutants General may approve retention beyond MRD for warrant officers.  However, the State must forward the approval to the NGB for publication of Federal recognition orders.  Through no fault of the applicant, this was not done.

3.  It is unjust and inequitable to deny the applicant retired pay benefits for the 2 years and 2 months of additional service he performed from 13 July 2004 through his extended MRD of 12 September 2006 simply because his State failed to submit the appropriate paperwork to NGB Headquarters.

4.  The applicant requests credit for service through 30 September 2006; however, by law and regulation he could only have been retained through 12 September 2006.  The State of California erroneously published orders separating him on 30 September 2006, but these orders were subsequently amended.

5.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records as indicated below.

BOARD VOTE:

__tsk___  __jlp___  __dwt___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that the State of California Army National Guard timely filed the individual's approved retention packet to the National Guard Bureau for issuance of Federal recognition orders beyond age 60;

	b.  publishing Federal recognition orders for service beyond age 60 for the individual concerned; and

	c.  payment of all backpay due as a result of the above corrections.



							TSK
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070009331



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508