IN THE CASE OF:	  

		BOARD DATE:	  12 November 2008

		DOCKET NUMBER:  AR20080014691 


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, that his date of rank and appointment date be adjusted from 20 August 2008 to 22 September 2007.

2.  The applicant states, in effect, that he was originally appointed in the Puerto Rico Army National Guard (PRARNG) on 22 September 2007.  His appointment packet was held at the PRARNG level because it was missing evidence of military education.  “He was not notified in a timely manner and by the time mentioned evidence was submitted, the 6-month temporary Federal Recognition had expired.”  He was re-boarded and appointed effective 20 August 2008. 

3.  The applicant provides copies of two appointment orders, two National Guard Bureau (NGB) Forms 89 (Proceedings of a Federal Recognition Examining Board), two NGB Forms 337 (Oaths of Office), and a copy of NGB Special Orders Number 222 AR in support of his request.

CONSIDERATION OF EVIDENCE:

1.  On 15 November 2006, the applicant appeared before a Federal Recognition Examining Board (FREB).  He was found to be physically, morally, generally and professionally qualified for appointment as a warrant officer one (WO1) in the Ordnance Corps.  

2.  The applicant was granted temporary Federal recognition in the PRARNG, as a warrant officer one (WO1/W-1), in the Ordnance Corps effective 22 September 2007.  He signed his Oaths of Office on the same day.
3.  On 27 September 2007, PRARNG Element, Joint Forces Headquarters, Orders Number 270-16 were published appointing the applicant in the PRARNG as a WO1, in the Ordnance Corps, with a date of rank (DOR) of 22 September 2007, a PEBD (Pay Entry Basic Date) of 21 May 1997, and a commissioned service date of 22 September 2007.

4.  On 20 August 2008, the applicant appeared before an FREB.  He was found to be physically, morally, generally, and professionally qualified for appointment as a WO1/W-1 in the Ordnance Corps.  

5.  The applicant was granted temporary Federal recognition in the PRARNG, as a WO1/W-1, in the Ordnance Corps effective 20 August 2008.  He signed his Oaths of Office on the same day.  

6.  On 26 August 2008, the PRARNG Element, Joint Forces Headquarters published Orders 239-547 appointing the applicant in the PRARNG, in the rank of WO1/W-1 with an effective date of 20 August 2008. 

7.  On 28 August 2008, Department of the Army and the Air Force, NGB, issued Special Orders Number 222 AR, showing he was extended Federal recognition in the PRARNG, in the rank of WO1/W-1 with an effective date of 20 August 2008.

8.  In an advisory opinion, the Chief, Personnel Division, Departments of the Army and the Air Force, NGB, reiterated the applicant's request and statement.  

9.  The Chief, Personnel Division, further advised that NGR 600-100, paragraph 
2-4a-b, the appointment of warrant officers in the Army National Guard (ARNG) is a function of the State concerned.  Upon appointment in the ARNG of a State and subscribed to an oath of office, a 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 NGB (CNGB), and appointed as a Reserve of the Army.  The effective date of Federal recognition is the date the warrant officer executes the Oath of Office, NGB Form 337.  Additionally, paragraph 2-3a provides, in order for a warrant officer to be concurrently appointed as a Reserve warrant officer of the Army, the State action must be federally recognized.  Temporary Federal recognition may be extended to an officer who has been found qualified by a Federal Recognition Board (FRB) 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 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, through no fault of the applicant, a subsequent FRB must be convened to consider granting another six month period of temporary Federal recognition.

10.  The Chief, Personnel Division, recommended approval of the applicant's request for his initial appointment date to be adjusted from 20 August 2008 to 
22 September 2007 with entitlement to all back pay and allowances.  The recommendation was based on the regulatory authority that supports this decision as well as the Oaths of Office he signed.

11.  The opinion was forwarded to the applicant for his acknowledgement on 29 September 2008 and he concurred with the opinion on the same day.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant's initial FREB recommended him for appointment in the PRARNG in the rank of WO1 with an effective date and date of rank of 22 September 2007.  Through no fault of the applicant, his temporary extension of Federal recognition expired. 

2.  A second FREB was convened and the applicant was again found qualified for extension of Federal recognition for appointment.  Upon submission of this second appointment request, another Oaths of Office was completed and his date of rank for W01 became 20 August 2008, the date the second oath was administered.  The administrative error in processing and securing the applicant's Federal recognition altered his date of rank through no fault of his own and he should not be penalized for this action.

3.  In view of the circumstances in this case, the applicant is entitled to correction of his records to show he was appointed in the PRARNG and extended Federal recognition as a WO1 effective 22 September 2007 with entitlement to all back pay and allowances.  The applicant is also entitled to nullification of his Oaths of Office, dated 20 August 2008; revocation of Orders 239-547, dated 26 August 2008.  These documents should be declared void and of no force or effect.  Further, NGB Special Orders Number 222 AR, dated 28 August 2002, should be amended to show the applicant was appointed in the PRARNG and extended Federal recognition, as a WO1, effective 22 September 2007, with all appropriate adjustments of pay and allowances.



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 Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  voiding the applicant's Oaths of Office, dated 20 August 2008;

	b.  revoking PRARNG Element, Joint Forces Headquarters Orders
239-547, dated 26 August 2008; and

	c.  amending NGB Special Orders Number 222 AR, dated 28 August 2008, to show the applicant was appointed in the Puerto Rico Army National Guard and extended Federal recognition, as a WO1, effective 22 September 2007, with all appropriate adjustments of pay and allowances.




      _______ _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.



ABCMR Record of Proceedings (cont)                                         AR20080014691



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ABCMR Record of Proceedings (cont)                                         AR20080014691



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