IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100016800 


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 adjustment of his initial appointment date to warrant officer one (WO1) from 28 April 2010 to 5 March 2008 and promotion to chief warrant officer two (CW2) with award of military occupational specialty (MOS) effective 5 March 2010.

2.  The applicant states his initial appointment was never processed and it expired after six months.  The administrative error was noticed when the State submitted a request to the National Guard Bureau (NGB) to award him an MOS.

3.  The applicant provides two NGB Forms 337 (Oaths of Office), two NGB Forms 89 (Proceedings of a Federal Recognition Examining Board (FREB)), discharge and appointment orders, and NGB Special Orders Number 107 AR [Federal recognition orders].

CONSIDERATION OF EVIDENCE:

1.  On 16 August 2007, an FREB was held by the Missouri Army National Guard (MOARNG) to determine if the applicant was qualified to be awarded Federal recognition for initial appointment.  The proceedings indicated that he was physically, morally, generally, and professionally qualified for the appointment sought and recommended the applicant be granted Federal recognition.

2.  On 28 February 2008, the MOARNG published Orders 059-318 appointing him as a WO1 in the ARNG, effective 5 March 2008.  He executed an NGB 337 in the MOARNG on the same date.
3.  His record contains no indication Federal recognition orders was issued for his initial appointment of 5 March 2008.  At the time, a complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Missouri for endorsement to the NGB for extension of permanent Federal recognition.  However, this action was not taken and his temporary Federal Recognition expired.

4.  A DA Form 1059 (Service School Academic Evaluation Report) confirms he completed the Warrant Officer Basic Course (WOBC) for MOS 919A (Engineer Equipment Repair Technician) on 18 September 2009.

5.  On 28 April 2010, a second FREB was held by the MOARNG to determine if he was qualified to be awarded Federal recognition for appointment as a WO1.  The proceedings indicate he was physically, morally, generally, and professionally qualified for the appointment sought and recommended the applicant be granted Federal recognition.

6.  On 28 April 2010, the MOARNG published Orders 118-097 appointing him as a WO1 in the ARNG, effective 28 April 2010, in MOS 919A0.  He executed an NGB 337 in the MOARNG on the same date.

7.  On 24 May 2010, the NGB published Special Orders Number 107 AR extending the applicant Federal recognition for initial appointment as a WO1, effective 28 April 2010.

8.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommends approval of the applicant's request to adjust his initial WO1 appointment date to 5 March 2008 and promoting him to CW2 effective 5 March 2010, providing he has met all other requirements for promotion.

9.  The advisory official further states the applicant met the minimum 2 years time in grade requirement for promotion and that he completed the Warrant Officer Basic Course on 18 Mary 2009, which is within 2 years from the date of his initial appointment as a WO1.  The official also states that the State concurs with this recommendation.

10.  On 22 December 2010, the advisory opinion was forwarded to the applicant for information and to provide him the opportunity to submit comments or a rebuttal.  No response was received.

11.  National Guard Regulation 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition and states in:

	a.  paragraph 2-2 the appointment of warrant officers is a function of the state concerned.  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.  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;

	b.  paragraph 2-4b the effective date of Federal recognition for original appointment is that date on which the warrant 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;

	c.  paragraph 2-3 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 FREB 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 FREB should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted; and

	d.  paragraph 2-3a that temporary Federal recognition may be granted by an FREB 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 FREB 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.  Records show the applicant was granted temporary Federal recognition effective 5 March 2008 upon his initial appointment in the MOARNG 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 Missouri for endorsement to the NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken and his temporary Federal recognition expired.

2.  Subsequently, his Federal recognition packet was considered by another FREB on 28 April 2010.  Based on the recommendations of the second FREB, the NGB issued orders awarding him permanent Federal recognition, effective
28 April 2010.

3.  From the foregoing, it is clear that an administrative error denied him Federal recognition, effective 5 March 2008.

4.  Based on applicable laws and regulation, he is entitled to have NGB Special Orders Number 107 AR, dated 24 May 2010, amended to show the effective date of permanent Federal Recognition in the grade of WO1 as 5 March 2008.

5.  Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to CW2 effective 5 March 2010.  Therefore, he is entitled to have Federal recognition orders issued to grant him Federal recognition for promotion to CW2 with an effective date and date of rank of
5 March 2010 in MOS 919A0 and to receive all back pay and allowances due as a result of correction of his initial appointment and promotion to CW2.

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

	a.  amending NGB Special Orders Number 107 AR, dated 24 May 2010, to show he was extended Federal recognition in the grade of WO1 for the purpose of initial appointment effective 5 March 2008;

	b.  publishing NGB Special Orders to show the applicant was extended Federal recognition in the grade of CW2 for the purpose of promotion effective and with a date of rank of 5 March 2010, in MOS 919A0, providing he meets all other requirements for promotion; and

	c.  paying him all back pay and allowances due as a result of these corrections.



      ____________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)                                         AR20100016800



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ABCMR Record of Proceedings (cont)                                         AR20100016800



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