IN THE CASE OF:	  

		BOARD DATE:	 29 January 2009 

		DOCKET NUMBER:  AR20080016495 


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 and that he be promoted to CW2 (Chief Warrant Officer Two) with an effective date of 29 November 2007.

2.  The applicant contends, in effect, that his original appointment date to WO1 (Warrant Officer One) should be 30 September 2006 with a date of rank to WO1 of 29 November 2006.  He adds that he should be promoted to CW2 on 29 November 2007.

3.  The applicant states, in effect, that he was originally appointed to WO1 on 29 November 2006.  The six month temporary Federal recognition expired before the Secretary of Defense signed the appointment scroll and he was reappointed by a subsequent Federal recognition board on 19 September 2007.

4.  In a self-authored addendum to the DD Form 149 (Application for Correction of Military Record) the applicant submitted, he describes several errors that occurred, not due to his own fault, that caused delays in the processing of his appointment and Federal recognition.  Waivers had to be re-done.  He did not receive approval of his Federal recognition until the second time his "packet" was submitted.  Since his date of rank is wrong due to the Federal recognition errors, he was not promoted in a timely manner.


5.  The applicant provides copies of those documents which are listed in Item 9 (In Support of this Application, I Submit as Evidence the Following Attached Documents) of the DD Form 149 he submitted to the Board.

CONSIDERATION OF EVIDENCE:

1.  The evidence of record shows the applicant served in the Naval Reserve and in the Regular Army in an enlisted status.  He also served in the Naval Reserve in an officer status prior to his appointment in a warrant officer status.  The applicant's service was in an inactive status, on active duty for training, on active duty, and during the period 23 May 2006 through 28 November 2006 he held no military status - active or Reserve.  The applicant's Army National Guard Retirement Points History Statement, dated 9 December 2008 shows he returned to service in the Army National Guard on 29 November 2006.

2.  The evidence shows on 29 November 2006, a Federal Recognition Examining Board was held by the GAARNG to determine the applicant's qualifications for Federal Recognition as a WO1 in military occupational specialty 351B (Human Intelligence Collection Technician).

3.  The NGB Form 89, Proceedings of a Federal Recognition Examining Board, dated 29 November 2006, indicates the board found the applicant to be physically, morally, generally, and professionally qualified for the appointment he sought and recommended he be granted Federal Recognition.

4.  On 29 November 2006, the applicant executed a NGB Form 337, Oaths of Office, as a WO1 in the GAARNG and he was granted temporary Federal Recognition.

5.  On 6 March 2007, Orders 065-020 were published by the State of Georgia, Department of Defense, Ellenwood, Georgia, appointing the applicant as a WO1 in the Army National Guard under authority of National Guard Regulation 600-101.  The applicant was given a promotion service date of 29 November 2006 and a promotion eligibility date of 29 November 2008.

6.  The applicant was ordered to active duty for training on 13 May 2007.  He successfully completed the Military Intelligence Warrant Officer Basic Phase II course on 22 June 2007.  He was honorably released from active duty for training on this same date at the completion of his required training and returned to the GAARNG.


7.  On 19 September 2007, a Federal Recognition Examining Board was again held by the GAARNG to determine the applicant's qualifications for Federal Recognition as a WO1 as a Human Intelligence Collection Technician.

8.  The Proceedings of a Federal Recognition Examining Board, dated 19 September 2007, shows the board found the applicant to be physically, morally, generally, and professionally qualified for the appointment and again recommended he be granted Federal Recognition.

9.  On 19 September 2007, the applicant executed the Oaths of Office, for temporary appointment as a WO1 in the GAARNG.

10.  On 16 October 2007, Orders 289-002 were published by the State of Georgia, Department of Defense, Military Division, Ellenwood, Georgia, appointing the applicant as a WO1 in the Army National Guard under authority of National Guard Regulation 600-101, with an effective date of 19 September 2007.  The applicant was given a promotion service date of 19 September 2007 and a promotion eligibility date of 19 September 2009.

11.  The applicant completed the Human Intelligence Collector course held at Fort Huachuca, Arizona, during the period 20 August 2007 through 17 January 2008.

12.  Special Orders Number 197 AR were published by Departments of the Army and Air Force, National Guard Bureau, dated 5 August 2008.  These orders extended Federal recognition to the applicant in the rank of WO1 with an effective date of 19 September 2007 as an initial appointment.

13.  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.

14.  In an advisory opinion, dated 22 October 2008, the Chief, Personnel Division, Departments of the Army and the Air Force, National Guard Bureau, reiterated the applicant's request that his appointment date be adjusted from 19 September 2007 to 29 November 2006 and that he be promoted to CW2 on 29 November 2007.  The Chief, Personnel Division, recommended partial approval of the applicant's request.  He recommended, based on the Oaths of Office, State Orders and the NGB Form 89 that show an initial [original] effective date of appointment of 29 November 2006, that the applicant's initial appointment date be adjusted to 29 November 2006.  The Chief, Personnel Division, also 


pointed out, at the time, that the applicant would not be eligible for promotion until 29 November 2008 due to the time in grade requirements listed in Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Table 2-3, which states that the minimum time in grade for promotion to CW2 is two years.

15.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 31 October 2008.  The applicant did not respond to the advisory opinion.

16.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions), 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.

17.  Paragraph 2-3 of NGR 600-101 states that temporary Federal Recognition may be extended to a warrant officer who has been appointed in the ARNG of a State and found to be qualified by an Federal recognition board pending final determination of eligibility and appointment as a warrant officer of the Army.  If not sooner withdrawn or replaced by the granting of permanent Federal Recognition, temporary Federal Recognition will automatically terminate six months after the effective date of State appointment.  However, should the initial period of temporary Federal Recognition expire due to administrative processing delays, through no fault of the member, a subsequent Federal recognition board should be convened to consider the request again and grant another new period of temporary Federal Recognition if warranted.

18.  Paragraph 2-3a of National Guard Regulation 600-101 states that temporary Federal Recognition may be granted by an Federal recognition board to those eligible when the board finds that the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has 


been appointed by a State order for assignment to a position vacancy in a Federally recognized unit of the Army National Guard.  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.

19.  Paragraph 2-4b of National Guard Regulation 600-101, states that the effective date of Federal Recognition for original appointment is that date on which the warrant officer executes the oath 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.

20.  National Guard Regulation 600-101 prescribes the policies and procedures for Army National Guard warrant officer personnel management.  Paragraph 7-1 of this regulation specifies that appointment and promotion of warrant officers in the Army National Guard is a function of the State The Adjutant General.  A WO1 must complete a minimum of two years time in grade for promotion to CW2.

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was granted temporary Federal Recognition effective 29 November 2006 upon his initial appointment in the GAARNG as WO1.

2.  The applicant alleges that there were errors in his appointment documents which caused a delay in the processing of his Federal recognition through no fault of his own.  Copies of the alleged erroneous documents are not available for the Board's review.  As a consequence, his appointment was not approved in sufficient time to have his name added to the appointment scroll before it was signed by the Secretary of the Army.  His temporary Federal recognition expired and it was necessary to resubmit his "packet" once again.

3.  On 19 September 2007, the applicant was again considered for Federal recognition.  He was found qualified and was again given temporary Federal recognition.

4.  Based on the recommendations of the second Federal recognition board, the National Guard Bureau issued orders awarding the applicant permanent Federal Recognition effective 19 September 2007.

5.  From the foregoing, it is clear that an administrative error denied the applicant permanent Federal Recognition effective 29 November 2006.

6.  Based on applicable law and regulation, the applicant is entitled to have Federal Special Orders Number 197 AR amended to show the effective date of permanent Federal Recognition in the grade of WO1 as 29 November 2006.

7.  Additionally, based on the above correction and the fact that the applicant successfully completed the required courses of instruction and met the time-in grade requirement for promotion to the grade of CW2, he is entitled to promotion to the rank and pay grade CW2, W-2, with an effective date and date of rank of 29 November 2008 provided he met all other promotional qualifications.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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:

   a.  by rescinding Orders 289-002, dated 16 October 2007, which appoints the applicant in the GAARNG as a WO1 effective 19 September 2007 and voiding the applicant's Oaths of Office dated 19 September 2007 and declaring it to be of no force or effect;
   
   b.  by amending Special Orders Number 197 AR, dated 5 August 2008 to show that the applicant was appointed in the GAARNG and extended Federal Recognition as a WO1 effective 29 November 2006 with all appropriate adjustments of pay and allowances; and 
   
   c.  that he be promoted to CW2 on 29 November 2008 provided he met all other promotion qualifications/requirements.

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 the applicant's request that he be promoted to CW2 with an effective date of 29 November 2007.




      _______ _   __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)                                         AR20080016495





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016495



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1