IN THE CASE OF:	  

		BOARD DATE:	        25 NOVEMBER 2008

		DOCKET NUMBER:  AR20080001028 


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, in effect, a correction to his initial appointment date.

2.  The applicant states, in effect, that he received an initial appointment date of 31 July 2007 when he completed WOCS (Warrant Officer Candidate School) and accepted his appointment on 29 November 2006.

3.  The applicant provides copies of those documents which are listed in Item 10 of the DD Form 149, Application for Correction of Military Record, he submitted to the Board.

CONSIDERATION OF EVIDENCE:

1.  The evidence of record shows the applicant enlisted in the Montana Army National Guard (MTARNG) in the rank and pay grade of private first class, E-3, on 18 January 2002.  He attained the rank and pay grade of specialist, E-4, on 18 March 2004.  The applicant continued to serve in the MTARNG and on 9 August 2006 he was appointed a Warrant Officer Candidate.

2.  The evidence shows on 10 August 2006, a Federal Recognition Examining Board was held by the MTARNG to determine the applicant's qualifications for Federal Recognition as a Warrant Officer One (WO1) in military occupational specialty 009WO and for training and assignment in a duty position as a UH-60 Pilot.

3.  The NGB Form 89, Proceedings of a Federal Recognition Examining Board, dated 10 August 2006, indicates the board found the applicant to be physically, morally, generally, and professionally qualified for the appointment he sought and recommended he be awarded Federal Recognition.

4.  On 18 August 2006, Orders 230-024 were published by the Joint Forces Headquarters – Montana, Office of the Adjutant General, appointing the applicant as a Warrant Officer Candidate and promoting him to the rank and pay grade of sergeant, E-5, under authority of National Guard Regulation 600-101,
paragraph 4-6a.

5.  On 11 October 2006, the applicant was honorably discharged from the Army National Guard and as a Reserve of the Army in the rank and pay grade of specialist, E-4, by Orders 283-002 published by the Joint Forces Headquarters – Montana, Office of the Adjutant General, dated 10 October 2006.  These orders were amended by Orders 331-002 published by the same headquarters to change the effective date of the applicant’s discharge from 11 October 2006 to 28 November 2006.

6.  On 11 October 2006, Orders 284-013 were published by the Joint Forces Headquarters – Montana, Office of the Adjutant General, appointing the applicant as a WO1 in the Army National Guard in accordance with National Guard Regulation 600-101, paragraph 2-5.  The effective date of his appointment was 12 October 2006.  These orders were amended by Orders 331-001 published by the same headquarters to change the effective date of the applicant’s appointment from 12 October 2006 to 29 November 2006.

7.  On 29 November 2006, the applicant executed an NGB Form 337, Oaths of Office, as a Warrant Officer One in the MTARNG and he was granted temporary Federal Recognition.

8.  On 29 November 2006, the applicant completed a Statement of Understanding for Appointment as a Warrant Officer acknowledging that he must complete the Warrant Officer MOS (Military Occupational Specialty) certification within 2 years of the effective date of his appointment unless extended Federal Recognition by the Chief, National Guard Bureau.

9.  On 29 November 2006, the applicant also completed a statement, Subject:  Exception to Policy for Appointment with an Interim Security Clearance.  In this statement, the applicant acknowledged that his appointment was being accomplished before the completion of a required security investigation and issuance of a Secret security clearance.

10.  The applicant successfully completed Warrant Officer Candidate School, Class 07-02, at the United States Army Warrant Officer Career Center, Fort Rucker, Alabama, on 29 November 2006.

11.  The applicant’s official military personnel file contains a copy of the DD Form 214, Certificate of Release or Discharge from Active Duty, with an effective date of his release from active duty for training he was issued on 30 April 2008 on completion of Aviation Warrant Officer Basic-Part B.  This DD Form 214 shows he entered active duty for training on 29 November 2006 as a WO1 with an effective date of pay grade of 29 November 2006.

12.  Special Orders Number 303 AR were published by Departments of the Army and Air Force, National Guard Bureau, dated 3 December 2007.  These orders extended Federal recognition to the applicant in the rank of WO1 with an effective date of 31 July 2007 as an initial appointment.

13.  It was reported in an Information Paper prepared at the J-1, Joint Forces Headquarters – Montana, Office of the Adjutant General that the applicant had been appointed on 29 November 2006 in the MTARNG as a WO1.  It was additionally reported that his Federal recognition "Packet" was not forwarded to the NGB within the 6 months required after the Oaths of Office was administered and he accepted his commissioning.  This was, it was explained, a result of the loss of communications between the MTARNG and the school house at Fort Rucker, Alabama.  As soon as communications were restored, the "Packet" was completed, reboarded, and forwarded to the NGB for processing.  After the processing was complete, it gave the applicant an appointment date of 31 July 2007 when his appointment date should have been 29 November 2006.  The J-1, Joint Forces Headquarters – Montana, Office of the Adjutant General, opined that the individual should not be held responsible for a mistake that was not his fault.

14.  In the processing of this case, an advisory opinion was requested of the Army and the Air Force National Guard Bureau, Chief, Personnel Division, Arlington, Virginia.

15.  In an advisory opinion, dated 2 June 2008, the Chief, Personnel Division, Departments of the Army and the Air Force, National Guard Bureau, reiterated the applicant's request and statement and recommended approval of the applicant’s request to adjust his initial appointment date to 29 November 2006.  The recommendation the Chief, Personnel Division, submitted is based on the Oaths of Office the applicant signed upon graduation from the Army National Guard Warrant Officer Candidate School and National Guard Regulation 
600-101.
16.  The Chief, Personnel Division, continued in his advisory opinion that the appointment of warrant officers in the Army National Guard is a function of the State concerned.  Upon appointment in the ARNG of a State and when the individual subscribes to an oath of office, the Soldier assumes a State status under which to serve.  Such a Soldier acquires a Federal status when he or she is federally recognized by the Chief of the National Guard Bureau and appointed a Reserve of the Army.  The effective date of Federal recognition is the date the warrant officer executes the Oaths of Office, NGB Form 337.  Additionally, paragraph 2-3a states that in order for a warrant officer to be concurrently appointed a Reserve warrant officer of the Army the State action must be federally recognized.  Furthermore, paragraph 2-3a states temporary Federal recognition may be extended to an officer who has been found qualified by a Federal Recognition Board for appointment in the ARNG of a State pending receipt of permanent Federal recognition and appointment as a Reserve officer of the Army.  Temporary Federal recognition may be withdrawn when necessary at any time.  Unless sooner withdrawn or official orders are issued granting permanent Federal recognition, temporary Federal recognition will automatically terminate six months after the effective date of the State appointment (Title 32, United States Code, section 308).  However, should the initial period of temporary Federal recognition expire due to administrative processing delays, though no fault of the applicant, a subsequent Federal Recognition Board must be convened to consider granting another 6-month period of temporary Federal Recognition.

17.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 9 June 2008.  The applicant did not respond to the advisory opinion.

18.  National Guard Regulation 600-101, paragraph 2-4b, states that the effective date of Federal Recognition for original appointment is that date on which the officer executes the Oaths of Office in the State.  Paragraph 2-3 states that temporary Federal Recognition upon initial appointment establishes the authorized grade to be used by all officers in their Federally Recognized status.  Federal Recognition will continue in effect as long as the appointed/commissioned officer continues to meet requirements of the grade and position or until recognition is withdrawn in accordance with regulations, or as otherwise provided by law.  The Federal Recognition Board will forward the NGB Form 89 and allied documents to The Adjutant General.  When the member is favorably recommended, The Adjutant General will endorse the packet to the NGB.  If the member meets the qualifications and requirements for Federal Recognition, the Chief, NGB, extends permanent Federal Recognition to the member in the grade and branch in which the member is qualified.


DISCUSSION AND CONCLUSIONS:

1.  A Federal Recognition Examining Board was held by the MTARNG to determine the applicant's qualifications for Federal Recognition as a WO1 in MOS 009WO and for training and assignment in a duty position as a UH-60 Pilot.  The board found the applicant to be physically, morally, generally, and professionally qualified for the appointment he sought and recommended he be awarded Federal Recognition.

2.  The applicant successfully completed Warrant Officer Candidate School, at the United States Army Warrant Officer Career Center, Fort Rucker, on 29 November 2006.

3.  The applicant was appointed a WO1 in the Army National Guard in accordance with National Guard Regulation 600-101, paragraph 2-5.  The effective date of his appointment was 29 November 2006.  On this same date, the applicant executed a NGB Form 337, as a WO1 in the MTARNG and accepted temporary Federal Recognition.

4.  The applicant's Federal recognition "Packet" was not forwarded to the NGB within the 6 months required after the Oaths of Office was administered and he accepted his appointment.  This was allegedly the result of loss of communications between the MTARNG and the school house at Fort Rucker.  As soon as communications were restored, the "Packet" was completed, reboarded, and forwarded to the NGB for processing.

5.  Through no fault of the applicant, his temporary extension of Federal Recognition expired.

6.  Special Orders Number 303 AR were published by Departments of the Army and Air Force, National Guard Bureau, on 3 December 2007.  These orders extended Federal recognition to the applicant in the rank of WO1 with an effective date and date of rank of 31 July 2007 when his appointment date should have been 29 November 2006.  The J-1, Joint Forces Headquarters – Montana, Office of the Adjutant General, opined that the individual should not be held responsible for a mistake that was not his fault.

7.  In the advisory opinion, dated 2 June 2008, rendered by the Chief, Personnel Division, Departments of the Army and the Air Force, National Guard Bureau, the recommendation was approval of the applicant’s request to adjust his initial appointment date to 29 November 2006.  The recommendation the Chief, Personnel Division, submitted is based on the Oaths of Office the applicant signed upon graduation from the Army National Guard Officer Candidate School and National Guard Regulation 600-101.

8.  In view of the circumstances in this case, the applicant is entitled to correction of his records to show he was appointed in the MTARNG and extended Federal recognition as a WO1 effective 29 November 2006.  To accomplish this correction, NGB Special Orders Number 303 AR, dated 3 December 2007, should be amended to show the applicant was initially appointed in the MTARNG and extended Federal recognition, as a WO1, effective 29 November 2006.  The applicant is also entitled to all appropriate adjustments of pay and allowances in conjunction with this correction of his initial appointment date and extension of Federal recognition.

BOARD VOTE:

____X____  ___X_____  ___X_____  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 and Army National Guard records of the individual concerned be corrected by amending NGB Special Orders Number 303 AR, dated 3 December 2007, to show that the applicant was appointed in the Montana Army National Guard and extended Federal Recognition, as a Warrant Officer One, effective 29 November 2006, with all appropriate adjustments of pay and allowances.




      _______ _XXX   _______   ___
       	   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.

ABCMR Record of Proceedings (cont)                                         AR20080001028



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ABCMR Record of Proceedings (cont)                                         AR20080001028



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