IN THE CASE OF:	

		BOARD DATE:	       17 MARCH 2009

		DOCKET NUMBER:  AR20080018493 


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 initial appointment date for Warrant Officer One (WO1) be adjusted to 15 February 2006 and that his effective date of promotion to Chief Warrant Two (CW2) be changed to 28 June 2006.  
 
2.  The applicant states, in effect, that his initial appointment date for WO1 is 
15 February 2006 not 15 November 2006.  He contends that his promotion effective date to CW2 is supposed to be between 28 June 2006 and 
1 July 2006.  However, due to the lack of supervision, quality control, and responsibility on behalf of the staff assigned to the Officer Section, Personnel Branch, G-1 of the Puerto Rico Army National Guard the effective dates of his appointment and promotion were mistakenly changed to a later date, 
15 November 2006.  He claims that the error happened when the Personnel Section mishandled and misplaced either the initial appointment or promotion package to CW2 or documents attached to the same.     

3.  The applicant points out that he was appointed to WO1 effective 15 February 2006 in the Army National Guard due to the fact that he previously held the rank of captain, but he lost his rank when he had to leave the Puerto Rico Army National Guard due to personal reasons.  He contends that his commission to WO1 was approved and it was specified that upon completion of the Warrant Officer Basic Course he should be considered for promotion to CW2.  He indicates that he completed the Warrant Officer Basic Course on 28 June 2006, that his promotion package was lost and he had to resubmit it, and he was informed that his promotion package was reviewed favorably but the Officer Section did not send it to the National Guard Bureau for Federal recognition in a timely manner.  He contends that he was deployed to Iraq and that he was notified he would not be promoted to CW2 due to the fact his Federal recognition package executed on 15 February 2006 was never sent to the National Guard Bureau for review thereby making him a non-federally recognized warrant officer in the middle of a deployment.

4.  The applicant further states that he filed an Inspector General complaint in theater, that the Puerto Rico Army National Guard was pressured by the National Guard Bureau to submit his Federal recognition and promotion package as soon as possible, and that due to the fact that they were not sent in a timely manner by the Officer Section his effective date for Federal recognition, warrant officer appointment, and promotion date is 15 November 2006.  He indicates that all this was due to the expiration of his temporary Federal recognition, which was not his fault.      

5.  The applicant provides a memorandum, dated 12 January 2006; an excerpt from National Guard Regulation 600-101; his Federal Recognition package; Oaths of Office, dated 15 February 2006 and 15 November 2006; a DA Form 1059 (Service School Academic Evaluation Report), dated 28 June 2006; a diploma; numerous orders; an Oath of Office, dated 20 July 2006; and numerous emails in support of his application.     

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant had prior commissioned service in the Army National Guard.  He is currently serving on active duty in the Army National Guard in an Active Guard Reserve status in the rank of CW2.

2.  On 15 February 2006, a Federal Recognition Board was held by the Puerto Rico Army National Guard to determine if the applicant was qualified to be awarded Federal recognition as a WO1.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  The NGB Form 89 states, in pertinent part, that, "The applicant is qualified for appointment as warrant officer in the Army National Guard and is extended temporary Federal recognition as a WO1, as provided by NGR 600-101, effective (Date).  The applicant is promotable to the grade of CW2 to be effective upon Department of the Army proponent MOS [military occupational specialty] Certification without further FRB action."   

3.  On 15 February 2006, the applicant executed an Oaths of Office as a WO1 in the Puerto Rico Army National Guard and was granted temporary Federal recognition.

4.  The applicant completed the Property Accounting Technical Warrant Officer Basic Course on 28 June 2006. 

5.  On 20 July 2006, the applicant was appointed a CW2 in the Puerto Rico Army National Guard.

6.  Puerto Rico Army National Guard Orders, dated 14 September 2006, show the applicant was promoted to CW2 effective 16 August 2006.  Puerto Rico National Guard Orders, dated 26 February 2007, amended the 14 September 2006 orders to show the applicant was promoted to CW2 effective 28 June 2006.  Puerto Rico National Guard orders, dated 22 March 2007, amended the 
14 September 2006 orders to show the applicant was promoted to CW2 effective 15 November 2006.

7.  On 15 November 2006, a Federal Recognition Board was held by the Puerto Rico Army National Guard to determine if the applicant was qualified to be awarded Federal recognition as a WO1.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  

8.  On 15 November 2006, the applicant executed a second Oaths of Office as a WO1 in the Puerto Rico Army National Guard and was granted temporary Federal recognition.

9.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 296 AR, dated 20 November 2006, show the applicant was granted Federal Recognition for initial appointment to WO1 effective 
15 November 2006.

10.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 75 AR, dated 29 March 2007, show the applicant was granted Federal Recognition for promotion to CW2 effective 15 November 2006.   

11.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau.  That office recommends approval of the applicant’s request to adjust his initial appointment effective date to 15 February 2006 and disapproval of his request to adjust his promotion effective date and date of rank for CW2 to 28 June 2006.  The recommendation to adjust the applicant's initial appointment date is based on the Oaths of Office, appointment orders in the Army National Guard in the rank of WO1, dated 15 February 2006, and the NGB [National Guard Bureau] Form 89 (Proceedings of a Federal Recognition Examining Board) that all show an effective date of 15 February 2006.  The opinion points out that the applicant is a prior service Captain so he was not required to attend Warrant Officer Candidate School.  The opinion also points out that the applicant was promoted to captain on 26 February 1988 and then transferred to the Inactive National Guard on 1 February 1990.  He separated from the Army National Guard and transferred to the Individual Ready Reserve on 15 January 1990.  The total active status as a captain was 11 months and 
7 days, which does not meet the 2 year criteria for immediate consideration for promotion to CW2 upon completion of the Warrant Officer Basic Course. 

12.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 10 January 2009, he concurred with the opinion.

13.  Paragraph 2-2 of National Guard Regulation 600-101 (Warrant Officer – Federal Recognition and Related Personnel Actions) states, in pertinent part, that 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.  Paragraph 
2-3a states that temporary Federal recognition may be extended to an officer who has been found qualified by a Federal Recognition Board for appointment in the Army National Guard 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 Federal Recognition Board must be convened to consider granting another six months period of temporary Federal recognition.   

14.  Paragraph 2-4a of National Guard Regulation 600-101 states that the appointment of warrant officers in the Army National Guard is a function of the State concerned.  Upon appointment in the Army National Guard 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 they are Federally recognized by the Chief, National Guard Bureau, and appointed as a Reserve of the Army.  Paragraph 2-4b states that the effective date of Federal recognition is the date the warrant officer executes the Oath of Office, National Guard Bureau Form 337. 

15.  Paragraph 2-9c of National Guard Regulation 600-101 states that current or former commissioned officer and warrant officers are not required to complete the Warrant Officer Basic Course for re-appointment. 

16.  Paragraph 10b(3) of National Guard Regulation 600-101 states that commissioned officers predetermined to be only qualified for entry into the warrant officer training program, (meaning they must attend a warrant officer basic course), will be initially appointed in the grade of WO1.  A commissioned officer may be considered for promotion to the grade of CW2 when certified by the military occupational specialty proponent, provided they served a minimum of 2 years in an active status in the rank of captain or above. 

17.  Table 7-1 of National Guard Regulation 600-101 states that the minimum time in grade as a WO1 for promotion to CW2 is 2 years.

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was granted temporary Federal recognition effective 15 February 2006 upon his initial appointment in the Puerto Rico Army National Guard as a WO1.  At that time, his Federal recognition packet and allied documents should have been forwarded to the Adjutant General of the State of Puerto Rico for endorsement to the National Guard Bureau for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken.

2.  Subsequently, the National Guard Bureau issued orders granting Federal recognition for initial appointment in the rank of WO1 effective 15 November 2006.

3.  From the foregoing, it is clear that an administrative error denied the applicant Federal recognition as a WO1 effective 15 February 2006.  

4.  Based on applicable law and regulation, the applicant is entitled to have National Guard Bureau Special Orders Number 296 AR, dated 20 November 2006, amended to show the effective date of permanent Federal recognition in the rank of WO1 is 15 February 2006.

5.  The applicant's request that his effective date of promotion to CW2 be changed to 28 June 2006 was considered.  However, his total active status as a captain was 11 months and 7 days, which does not meet the 2-year criteria for immediate consideration for promotion to CW2 upon completion of the Warrant Officer Basic Course.  Therefore, there is an insufficient basis for granting this request.  




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 State Army National Guard records and Department of the Army records of the individual concerned be corrected by:

     a.  amending National Guard Bureau Special Orders Number 296 AR, dated 20 November 2006, to show he was extended Federal recognition effective 
15 February 2006 in the rank of WO1; and

     b.  paying him any and all back pay and allowances due as a result of this correction.

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 adjusting his effective date of promotion to CW2.  



      _______ _   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)                                         AR20080018493



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ABCMR Record of Proceedings (cont)                                         AR20080018493



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