IN THE CASE OF:	  

		BOARD DATE:	        22 January 2009

		DOCKET NUMBER:  AR20080018199 


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 as follows:

	a.  Adjustment of his initial appointment date to warrant officer one (WO1) in the Georgia Army National Guard (GAARNG), from 13 December 2007 to 30 September 2006, and adjustment of his date of rank (DOR) as a WO1 to 29 November 2006;

	b.  Promotion to chief warrant officer two (CW2) with an effective date and DOR as 17 August 2007 instead of 10 July 2008; and

	c.  Restoration of back pay and allowances as a result of these adjustments.

2.  The applicant states that he was originally appointed as a WO1 in the GAARNG on 29 November 2006 and that the six-month temporary Federal recognition expired before the Secretary of Defense signed the appointment scroll.  He adds that he was subsequently appointed by a second Federal Recognition Board on 19 September 2007 and that several waivers had to be redone which delayed the processing of his Federal recognition the second time. He also adds that while his Federal recognition was in process, he completed the Warrant Officer Basic Course on 17 August 2007 and was eligible for promotion to CW2, but this could not be accomplished due to the pending Federal recognition for WO1.

3.  The applicant provided the following additional documentary evidence in support of his application: 
	a.  National Guard Bureau (NGB) Federal Recognition Special Orders Number 135 AR, dated 29 May 2008, initial appointment.

	b.  Orders 006-004, issued by the GAARNG on 6 January 2007, initial appointment in the GAARNG.

	c.  NGB Forms 89 (Proceedings of a Federal Recognition Examining Board), dated 21 September 2006 and 13 December 2007.

	d.  DA Form 1059 (Service School Academic Evaluation Report), dated 17 August 2007.

	e.  Applicant's oaths of office, dated 7 March 2007 and 13 December 2007.

	f.  Orders 064-26, issued by the GAARNG on 5 March 2007, initial appointment in the GAARNG.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he initially enlisted in the Regular Army on 22 October 1981.  He was trained in and held military occupational specialty (MOS) 63H (Track Vehicle Repairer).  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 21 January 1986.

2.  The applicant’s records also show he enlisted in the GAARNG on 29 August 1986.  He subsequently executed a series of extensions and/or reenlistments in the GAARNG.  He also held various primary specialties and was promoted to sergeant first class (SFC)/E-7 on 23 October 1995 and master sergeant (MSG)/E-8 on 20 February 2002.

3.  On 6 December 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 15 May 2005 to 5 May 2006.  He was honorably released from active duty and transferred to the control of his ARNG unit on 5 June 2006.

4.  On 21 September 2006, a Federal Recognition Board was held by the GAARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  

5.  On 6 January 2007, the Military Division of the GAARNG, Ellenwood, GA, issued Orders 006-004, for appointment of the applicant as an ordnance warrant office candidate (WOC) in the GAARNG, effective 21 September 2006.  

6.  On 7 March 2007, the applicant completed the Warrant Officer Candidate School, at Fort Rucker, Alabama.  He also executed an oath of office on the same date and was granted temporary Federal recognition.

7.  There is no evidence that the applicant received permanent Federal recognition as a WO1 from the National Guard Bureau within the six month period required by National Guard/Army regulations.  As a result his temporary Federal recognition expired.

8.  On 17 August 2007, the applicant completed the Unit Maintenance Warrant Officer Basic Course at Aberdeen Proving Ground, Maryland.

9.  On 13 December 2007, a second Federal Recognition Board was held by the GAARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  

10.  On 13 December 2007, the applicant executed a second oath of office as a WO1 in the GAARNG and was granted temporary Federal recognition.

11.  On 5 March 2008 (erroneously shown as 5 March 2007), the Military Division of the GAARNG, Ellenwood, GA, issued Orders 064-26, for appointment of the applicant as an ordnance WO1 in the GAARNG, effective 13 December 2007.

12.  On 29 May 2008, NGB Special Orders Number 135 AR, awarded the applicant permanent Federal recognition for initial appointment to the grade of WO1, effective 13 December 2007 (the date the second Federal Recognition Board was held and the applicant executed his second oath of office).

13.  On 19 August 2008, the Military Division of the GAARNG, Ellenwood, GA, issued Orders 232-021, announcing the applicant’s promotion to CW2 in the GAARNG with an effective date and DOR as 10 July 2008.

14.  On 25 August 2008, the applicant was extended Federal recognition for the purpose of his promotion to CW2 and award of military occupational specialty (MOS) 915A (Unit Maintenance Technician), effective 10 July 2008.


15.  An advisory opinion was obtained in the processing of this case on 17 November 2008.  The Acting Chief of the Personnel Division, NGB, recommended approval of the applicant's request in so much as to adjust his initial appointment effective date to 7 March 2007 and adjust his promotion effective date and DOR to CW2 to 17 August 2007, and that he receive all back pay and allowances as a result of this adjustment.  This recommendation is based on the applicant’s oath of office, Orders 064-26 issued by GAARNG on 5 March 2008, and NGB Form 89 that show an effective date of 7 March 2007 and the DA Form 1059, dated 17 August 2007, that shows completion of WOBC.

16.  A copy of the advisory opinion was furnished to the applicant on 3 December 2008.  He concurred on 8 January 2009. 

17.  National Guard Regulation 600-101 (Warrant Officer - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition.  Paragraph 2-1 of NGR 600-101 states that warrant officers of the ARNG are appointed by the several States under Article 1, Section 8 of the U.S. Constitution.  These appointments may be federally recognized by the Chief, NGB, under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Warrant officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve warrant officers of the Army with assignment to the Army National Guard of the United States, if they have not already accepted such appointment.

18.  National Guard Regulation 600-101, paragraph 2-3, states that temporary Federal recognition may be extended to an officer who has been appointed in the ARNG of a State and found to be qualified by a Federal recognition examining 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 6 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 examining board should be convened to consider the request again and grant another new period of temporary Federal recognition, if warranted.  Paragraph 2-4b states that the effective date of Federal recognition is the date on which the officer executes the oath of office.




19.  National Guard Regulation 600-101, paragraph 9-15b, states that temporary Federal recognition may be granted by a 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 ARNG.  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.

20.  National Guard Regulation 600-101, chapter 2, paragraph 10c states that enlisted Soldiers in the rank of MSG/E-8 through command sergeant major (CSM)/E-9 who served a minimum of two consecutive years as an E-8/E-9 may be appointed to CW2 in two ways:

	a.  MSG/E-8 through CSM/E-9 Soldiers who are certified by the MOS proponent prior to the date of initial appointment (attendance to WOBC is not required) may be appointed in the grade of CW2 upon completion of WOCS.  Constructive credit for WOCS may be granted if the Soldier has satisfactorily completed an OCS within the previous five years; and 

	b.  MSG/E-8 through CSM/E-9 Soldiers who are eligible for an MOS may be promoted to CW2 after completion of WOCS or WOBC.  Constructive credit for WOCS may be granted if the Soldier has satisfactorily completed OCS within the previous five years.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was granted temporary Federal recognition effective 7 March 2007 upon his completion of WOCS and execution of an oath of office.  At that time, his Federal recognition packet and allied documents should have been forwarded to the Adjutant General of the State of Georgia for endorsement to the NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not accomplished.

2.  Subsequently, the applicant's Federal recognition packet was considered by a second GAARNG Federal Recognition Board on 13 December 2007 and the applicant executed a second oath of office on that date.  Based on the recommendations of the second GAARNG Federal Recognition Board, the NGB issued orders awarding the applicant permanent Federal recognition effective 13 December 2007.
3.  From the foregoing, it is clear that an administrative error denied the applicant Federal recognition effective 7 March 2007.  Therefore, based on applicable law and regulation, the applicant is entitled to have Federal Recognition Order Number 135 AR amended to show the effective date of permanent Federal recognition in the grade of WO1 as 7 March 2007 and to receive back pay and allowances as a result of this correction.

4.  The applicant also previously held the rank of MSG and was eligible for MOS training.  Based on the 7 March 2007 effective date for WO1 and completion of the military educational requirement, Unit Maintenance WOBC on 17 August 2007, the applicant was eligible for promotion to CW2 on 17 August 2007.  Therefore, the applicant is entitled to correction of his records to show he was promoted to CW2 and awarded permanent Federal recognition for promotion to CW2, effective 17 August 2007 and to receive back pay and allowances as a result of this correction.

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.  amending Federal Recognition Order Number 135 AR, dated 29 May 2008 to show that he was extended Federal recognition effective 7 March 2007 in the grade of WO1; 

	b.  amending Federal Recognition Order Number 219 AR, dated 25 August 2008 to show he was extended Federal recognition in the grade of CW2 with an effective date and date of rank as 17 August 2007; and

	c.  restoration of back pay and allowances as a result of these corrections. 

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 so much of the application that pertains to correction of the applicant’s DOR as a WO1 to 29 November 2006.


															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)                                         AR20080018199



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ABCMR Record of Proceedings (cont)                                         AR20080018199



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