IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110001308 


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 record to show he was extended Federal recognition on 1 August 2008 as his initial effective date of appointment and date of rank (DOR) to warrant officer one (WO1) to allow for promotion to chief warrant officer two (CW2) on 24 September 2010.

2.  The applicant states this administrative error was due to no fault of his own.  He contends that although he was initially appointed with temporary Federal recognition on 1 August 2008, the Ohio Army National Guard (OHARNG) failed to submit the paperwork for his appointment in a timely fashion prior to the expiration of his temporary Federal recognition.  As a result, he was not Federally recognized and reappointed to WO1 until 26 October 2010 which caused a delay in his promotion to CW2.

3.  He provides the following documents:

* a National Guard Bureau (NGB) Form 337 (Oaths of Office)
* two appointment orders
* a DA Form 71 (Oath of Office – Military Personnel)
* two NGB Forms 89 (Proceedings of a Federal Recognition Examining Board)
* two NGB Forms 0122E (Departments of the Army and the Air Force National Guard Bureau Federal Recognition Orders)
* a memorandum from the State of Ohio Adjutant General's Department


CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant applied for Warrant Officer Candidate School (WOCS).

2.  His record contains and he also provides an NGB Form 89, dated 20 December 2007, which shows a Federal recognition board (FRB) was held by the OHARNG to determine if the applicant was qualified to be awarded Federal recognition.  This form shows he was found to be fully qualified for appointment as a warrant officer in the Army National Guard (ARNG) and was selected for entry into WOCS.  It was further determined that he was fully qualified and to be extended temporary Federal recognition upon completion of WOCS.  Failure to achieve Department of the Army proponent duty military occupational specialty (MOS) certification within 2 years of warrant officer appointment would subject him to withdrawal of Federal recognition.

3.  Orders 218-098 issued by the State of Ohio Adjutant General's Department on 31 July 2008 show he was honorably discharged from the ARNG and as a Reserve of the Army in the rank of staff sergeant and was initially appointed as a WO1 in the ARNG on 1 August 2008.  Accordingly, he executed the appropriate oaths of office on an NGB Form 337 and a DA Form 71.

4.  There is no indication in the applicant's records that he was granted permanent Federal recognition for his initial appointment at the time of his appointment.

5.  His record contains and he also provides Orders 270-920 issued by the State of Ohio Adjutant General's Department on 27 September 2010 which show he was promoted to the grade of rank of CW2/W-2 with an effective date and DOR of 24 September 2010.  The additional instructions portion of these orders stated the effective date of promotion in the Reserve of the Army and corresponding DOR would be the date Chief, NGB, extended Federal recognition of the State promotion.

6.  His record contains a DA Form 1059 (Service School Academic Evaluation Report), dated 1 October 2010, which shows he completed MOS certification training in the form of the Warrant Officer Basic Course (WOBC) on 1 October 2010.

7.  His record contains and he also provides an NGB Form 89, dated 26 October 2010, which shows an FRB was held by the OHARNG to determine if the applicant was qualified to be extended temporary Federal recognition as a WO1. 
This form shows he was found to be fully qualified and extended him temporary Federal recognition.

8.  His record contains and he also provides Orders 307-091 issued by the State of Ohio Adjutant General's Department on 3 November 2010 which show he was appointed as a WO1 in the ARNG effective 26 October 2010.  The additional instructions portion of these orders contains the entry "initial temporary Federal recognition expired; re-appointed as WO1."

9.  His record contains and he also provides an NGB Form 0122E which shows NGB Special Orders Number 254 AR were published on 18 November 2010 extending Federal recognition to the applicant for the purpose of initial appointment as a WO1 effective 26 October 2010 (the date he was granted temporary Federal recognition for the second time).

10.  His record contains and he also provides Orders 323-901 issued by the State of Ohio Adjutant General's Department on 19 November 2010 which amended Orders 270-920 issued by the same headquarters on 27 September 2010 by changing his effective date of promotion and DOR to the grade of rank of CW2/W-2 from 24 September 2010 to 26 October 2010.

11.  His record contains and he also provides an NGB Form 0122E which shows NGB Special Orders Number 267 AR were published on 3 December 2010 extending Federal recognition to the applicant for promotion to CW2/W-2 effective 26 October 2010 (the date he was granted temporary Federal recognition for WO1/W-1 the second time).

12.  The applicant provides a memorandum rendered by Chief, Officer Personnel Branch, State of Ohio Adjutant General's Department, on 13 January 2011.  The Officer Personnel Branch Chief states she provided this memorandum to outline her office's failure to submit the applicant's initial appointment in the ARNG.  As a means of clarification she offers the following information pertaining to the applicant:

* he executed oaths of office and signed a DA Form 71 and an NGB Form 337 for his initial appointment in the OHARNG on 1 August 2008
* NGB authorized him temporary Federal recognition in the ARNG pending publication of permanent Federal recognition orders
* the Officer Personnel Branch did not submit his initial appointment packet before the 1-year temporary Federal recognition expired
* the omission was discovered when the applicant was submitted for promotion from WO1/W-1 to CW2/W-2
* the Officer Personnel Branch conducted an additional Federal recognition board for his initial appointment on 26 October 2010
* the reappointment packet was submitted to NGB and permanent Federal recognition as an ARNG officer was published on 18 November 2010, effective 26 October 2010

13.  The Officer Personnel Branch Chief recommends the following corrective actions be taken in the applicant's case:

* backdate the Federal recognition effective date of his initial appointment to 1 August 2008
* amend his DOR to CW2/W-2 to 24 September 2010 which would have been his promotion date had there been no delay in his packet
* the applicant was fully qualified for promotion on this date, but it was delayed until he attained permanent Federal recognition as a WO1/W-1

14.  In the processing of this case, an advisory opinion was obtained on 12 May 2011.  The NGB Personnel Policy Division Chief recommended partial approval of the applicant's request by:

* amending his initial appointment date as a WO1 to 1 August 2008 by amending Federal recognition Order Number 254 AR, dated 18 November 2010
* amending Federal recognition Order Number 267 AR, dated 3 December 2010, to reflect his promotion to CW2/W-2 effective date as 1 October 2010
* paying him all back pay and allowances due as a result of this correction

15.  The NGB Personnel Policy Division Chief offered the following rationale for his recommendations:

	a.  The applicant signed an NGB Form 337 on 1 August 2008.  In accordance with National Guard Regulation 600-101 (Warrant Officers Federal recognition and Related Personnel Actions), paragraph 2-4, "the effective date of Federal recognition is the date the warrant officer executes the oath of office NGB Form 337."

	b.  In accordance with National Guard Regulation 600-101, paragraph 2-3, "temporary Federal recognition may be extended to an officer who has been found to be qualified by an FRB for appointment in the ARNG of a State and 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 of permanent Federal recognition, temporary Federal recognition will automatically terminate 6 months after the effective date of the State appointment.  However, should the initial period of temporary Federal recognition expire due to administrative processing delays through no fault of the applicant, a subsequent FRB should be convened to consider granting another 6-month period of Federal recognition."  Title 31, U.S. Code, section 308, states, in part, "Temporary recognition so extended may be withdrawn at any time.  If not sooner withdrawn or replaced by permanent recognition upon appointment as a Reserve officer in the same grade, it terminates 1 year after its effective date."

	c.  In accordance with National Guard Regulation 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions), table 7-1 and table 7-2, the applicant met the 2-year time-in-grade requirement for promotion to CW2/W-2 on 1 August 2010 and met the education requirement on 1 August 2010 as evidenced by his DA Form 1059 for completion of WOBC.

	d.  In accordance with the Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, Amendment to Policy Memorandum, dated 14 January 2005, which states, "All Reserve Component (RC) officers (U.S. Army Reserve and ARNG) in the rank of 2LT will be promoted by the Human Resources Command (HRC) Office of Promotion (RC) or the NGB, as appropriate, to 1LT when they meet the 24-month time-in-grade requirement for promotion and complete the officer basic course.  This would also apply to WO1's who would be promoted to CW2 when they meet the time-in-grade requirements (24 months) for promotion and complete the WOBC."  Therefore, the applicant was eligible to be promoted effective 1 October 2010.

	e.  The State concurred with this recommendation.

16.  On 12 May 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not provide a response.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was extended Federal recognition on his initial effective date of appointment and DOR to WO1 to allow for promotion to CW2 on 24 September 2010.

2.  The evidence of record shows the applicant was granted temporary Federal recognition effective 1 August 2008 upon his initial appointment in the OHARNG and execution of the appropriate oaths of office on an NGB Form 337 and a DA Form 71.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Ohio for endorsement to NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken.

3.  Subsequently, his Federal recognition packet was considered by another OHARNG FRB.  Based on the recommendations of the second board, NGB issued orders awarding him permanent Federal recognition effective 16 October 2010.  This administrative error denied the applicant both Federal recognition effective 1 August 2008 and promotion to CW2 when he completed the requisite educational requirement of WOBC 26 months later on 1 October 2010.

4.  It is clear that an administrative error denied the applicant permanent Federal recognition effective 1 August 2008.  Based on applicable law and regulation, he is entitled to have his Federal recognition orders amended to show the effective date of permanent Federal recognition in the rank of WO1 as 1 August 2008.

5.  Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to CW2 effective 1 October 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 1 October 2010 and to receive all back pay and allowances due as a result of correction of his initial appointment and promotion to CW2.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  _____x__  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that State ARNG records and Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  amending Orders 218-098 issued by the State of Ohio Adjutant General's Department on 31 July 2008 to show the applicant was granted temporary Federal recognition in the grade of WO1 for the purpose of initial appointment effective 1 August 2008;

	b.  amending NGB Special Orders Number 254 AR, dated 18 November 2010, to show the applicant was extended permanent Federal recognition in the grade of WO1 for the purpose of initial appointment effective 1 August 2008;

	c.  amending Orders 270-920 issued by the State of Ohio Adjutant General's Department on 27 September 2010 to show he was promoted to the grade of rank of CW2/W-2 with an effective date and DOR of 1 October 2010;

	d.  revoking Orders 307-091, dated 3 November 2010, and Orders 323-901, dated 19 November 2010, both issued by the State of Ohio Adjutant General's Department;

	e.  amending NGB Special Orders Number 267 AR, dated 3 December 2010, to show the applicant was extended Federal recognition in the grade of CW2 for the purpose of promotion effective 1 October 2010; and

	f.  paying the applicant all back pay and allowances due as a result of these corrections.

2.  The Board further determined 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 correcting his record to show he was promoted to the grade of rank of CW2/W-2 with an effective date and DOR of 24 September 2010.



      ____________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)                                         AR20110001308



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ABCMR Record of Proceedings (cont)                                         AR20110001308



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