IN THE CASE OF:	  

		BOARD DATE:	    20 October 2011

		DOCKET NUMBER:  AR20110002412 


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 his date of rank (DOR) for promotion to Chief Warrant Officer (CW2), W-2 be adjusted from 17 October 2007 to 13 September 2007.  

2.  He states he/his:

* was an E-9 and successfully completed both the Warrant Officer Candidate School (WOCS) and the Warrant Officer Basic Course (WOBC)
* was military occupational specialty (MOS) qualified; therefore, he was eligible for promotion upon his graduation from WOBC on 13 September 2007
* command should have cut his promotion orders accordingly
* his National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board) should have been properly annotated to indicate his prior senior enlisted status as a sergeant major
* cited National Guard Regulation (NGR) 600-101 (Warrant Officers-Federal Recognition and Related Personnel Actions), paragraph 2-10c(2)
* promotion order showed the date the state Federal Recognition Board was held

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 1059 (Service School Academic Evaluation Report)
* Promotion orders to CW2
* Two NGB Forms 89, dated 17 October 2007 and 1 October 2006
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant completed prior enlisted service in the Army National Guard and the Regular Army.  He was promoted to sergeant major (SGM) on 7 February 2006.

3.  On 1 October 2006, a Federal Recognition Board was held by the West Virginia Army National Guard (WVARNG) to determine if the applicant was qualified to be awarded Federal Recognition.  This appointment was contingent upon successful completion of Department of the Army MOS proponent WOBC within 2 years of the date of appointment, unless otherwise extended by the Chief, NGB.  The NGB Form 89 did not indicate he had been promoted to SGM in February 2006.

4.  On 14 June 2007, he was released from active duty in the rank of SGM/E-9 for the purpose of accepting a commission or warrant in the Army.   

5.  He accepted an appointment as a warrant officer in the WVARNG on 15 June 2007.  

6.  On 15 June 2007, the applicant executed an Oath of Office as a warrant officer one (WO1) in the WVARNG and was granted temporary Federal Recognition.

7.  His DA Form 1059, dated 13 September 2007, shows he completed WOBC on 13 September 2007.  

8.  On 17 October 2007, a second Federal Recognition Board was held by the WVARNG to determine if the applicant was qualified to be awarded Federal Recognition for initial appointment as a CW2.  The Federal Recognition Board recommended the applicant be granted Federal Recognition.  
9.  Orders published on 23 October 2007 show he was promoted to CW2 with an effective date and DOR of 17 October 2007.  

10.  NGB Special Orders Number 268 AR, dated 31 October 2007, granted him Federal Recognition for promotion to CW2, effective 17 October 2007.

11.  In the processing of this case, an advisory opinion was obtained from the Acting Chief, Personnel Policy Division, NGB.  This office recommended approval of the applicant's request for correction of his DOR as a CW2 from         17 October 2007 to 13 September 2007.  This office recommended the applicant's Federal Recognition Order Number 268 AR, dated 31 October 2007, be amended to show his DOR for promotion CW2 as 13 September 2007 and to pay him all back pay and allowances as a result of the correction.  

12.  The advisory opinion further stated:  

   a.  The applicant was promoted to SGM/E-9 on 7 February 2006 and NGR 600-101, paragraph 2-10(c)(2) stated in part, "MSG [master sergeant] (E8) through CSM [command sergeant major] (E9) soldiers who are eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC."

   b.  The WVARNG stated in an email dated 23 May 2011 (email not available), indicating that the appropriate remark(s) based on the cited regulation was missing on the NGB Form 89 used for the applicant's initial appointment.  Had the missing remark(s) been on the referenced NGB Form 89, the applicant would have been eligible for promotion to CW2 the date of completion of WOBC without further board action.  
   
   c.  Documentation shows the applicant completed WOCS on 15 June 2007 and WOBC on 13 September 2007.  As a result, the applicant's DOR and promotion effective date to CW2 could be amended to reflect the day he completed WOBC.  

13.  A copy of the advisory opinion was provided to the applicant in order to allow him to submit comments.  He concurred with the opinion.  

14.  NGR 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions), paragraph 10-15b 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.

15.  NGR 600-101 provides procedures for processing all applications for Federal Recognition.  Paragraph 2-2 states that 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.  

16.  NGR 600-101, paragraph 2-10c(2) states MSG/E8 through CSM/E-9 Soldiers who are eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC. 

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was granted temporary Federal Recognition effective 15 June 2007 upon his initial appointment in the WVARNG as a WO1.  

2.  Based on the governing regulation (NGR 600-101), the applicant was eligible for promotion to CW2 after completion of WOCS and WOBC.  

3.  The applicant completed WOCS on 13 June 2007 and WOBC on 13 September 2007.  Therefore, he should have been promoted to CW2, effective 13 September 2007, the date he completed WOBC.

4.  As a matter of equity, it would be appropriate to amend Federal Recognition Order Number 268 AR, dated 31 October 2007, to show his DOR for promotion CW2 as 13 September 2007 and to pay him all back pay and allowances as a result of this correction.  


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 all Department of the Army records of the individual concerned be corrected by:

	a.  amending Federal Recognition Order Number 268 AR, dated 31 October 2007, to show he was granted Federal Recognition on and his DOR for promotion to CW2 as 13 September 2007; and

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




      _______ _   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)                                         AR20110002412





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002412



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1