BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120008635 


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 date of rank (DOR) as a chief warrant officer two (CW2) in the California Army National Guard (CAARNG) from 7 February 2012 to 1 December 2010.

2.  The applicant states in accordance with National Guard Bureau (NGB) policy, a sergeant first class (SFC) with over 2 years time in grade may be promoted to CW2 upon completion of the Warrant Officer Basic Course (WOBC).  He completed WOBC on 1 December 2010 but was not promoted until 7 February 2012.  When he was recruited into the WO program, he was told of his eligibility to be advanced upon successful completion of WOBC.  It was not until his promotion packet was submitted that his S-1 told him the Army is no longer honoring this NGB policy.

3.  The applicant provides:

* Promotion memorandum
* NGB Policy Memo Number 07-026, dated 14 August 2007, Subject: Policy to Appoint SFC to CW2 
* NGB Special Orders Number 61 AR
* Automotive Maintenance WO Basic Course diploma
* DA Form 1059 (Service School Academic Evaluation Report)
* SFC/E-7 promotion orders
* NGB Form 337 (Oaths of Office)
* NGB Form 89 (Proceedings of a Federal Recognition Examination Board)

CONSIDERATION OF EVIDENCE:

1.  The applicant previously served in the Regular Army from March 1993 to October 2000 and in the ARNG from an unknown date through June 2010.  He was promoted to SFC/E-7 in the ARNG on 16 May 2008.  

2.  On 20 April 2010, a Federal Recognition Board (FRB) was held by the CAARNG to determine if the applicant was qualified to be awarded Federal recognition for appointment as a WO of the ARNG.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  The NGB Form 89 states:

The applicant is qualified for appointment as a WO of the ARNG and is extended temporary Federal recognition as a WO, as provided in National Guard Regulation (NGR) 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions), to be effective from the date of successful completion of Warrant Officer Candidate School (WOCS).  The applicant is promotable to the grade of CW2 to be effective from the date of the Department of the Army military occupational specialty (MOS) proponent certification without further FRB action. 

3.  He entered active duty on 19 May 2010 and successfully completed WOCS.  He was honorably released from active duty on 28 June 2010 to accept an appointment as a WO of the Army.  

4.  On 29 June 2010, he executed a DA Form 71 (Oath of Office – Military Personnel) and an NGB Form 337 (Oaths of Office) as a Reserve WO in the CAARNG.  

5.  He successfully attended and completed the Automotive Maintenance WO Basic Course (WOBC) at Fort Lee, VA, from 2 November 2010 to 1 December 2010.

6.  It appears he was not granted timely Federal recognition for his initial appointment.

7.  On 27 July 2011, over a year after he had been appointed, NGB published Special Orders Number 170 AR extending the applicant Federal recognition for initial appointment with an effective date and date of rank of 29 June 2010. 

8.  On 29 July 2011, NGB published Special Orders Number 174 AR awarding him MOS 915A (Automotive Maintenance Technician).  
9.  He entered active duty on 16 September 2011 and subsequently served in Afghanistan from 6 November 2011 to 11 September 2012.  He was honorably released from active duty on 11 December 2012.  

10.  Meanwhile, on 22 February 2012, NGB published Special Orders Number 61 AR extending him Federal recognition for promotion to CW2.

11.  An advisory opinion was obtained from the NGB on 14 March 2012 in the processing of this case.  The official recommended approval of the applicant's request.  The official stated:  

	a.  The Soldier states that in accordance with (lAW) NGB Policy Memorandum Number 07-026, dated 14 August 2007, as an E7 with over two years time in grade, he should have been promoted to the rank of CW2 upon completion of WOBC.  The Soldier was promoted to SFC on 16 May 2008.  He completed WOCS on 28 June 2010 and signed an NGB Form 337, Oaths of Office, on 29 June 2010.  lAW NGR 600-101, paragraph 2-4 (b), "The effective date of Federal Recognition is the date the warrant officer executes the oath of office, NGB Form 337."  NGB Memorandum, dated 22 February 2012, indicates the Soldier was eligible for promotion and recommended he be promoted to CW2.

	b.  NGR 600-101 paragraph 2-3 states in part, "Temporary Federal Recognition may be extended to an officer who has been found qualified by an FRB for appointment in the ARNG 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, USC, section 308)."

	c.  Per the Soldier's NGB Form 89, Proceedings of a Federal Recognition
Examining Board dated 20 April 2010, he is promotable to the grade of CW2, to be effective from the date of the Department of the Army MOS proponent certification without further Federal Recognition Board action.  Soldier completed his WOBC on 1 December 2010.

	d.  Paragraph 2(a)(2) of Policy Memorandum 07-026, states, "Effective on the date of this memorandum, States are authorized to appoint a SFC (E7) to the grade of CW2 if they meet the criteria.  A SFC who has served a minimum of two consecutive years as an E7 may be appointed to CW2 in one of two ways." The second scenario is applicable in this instance.  The memorandum states in part, "SFC (E7) who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC."  Documentation provided by the Soldier shows that he completed WOCS on 28 June 2010 and WOBC on 1 December 2010. 

	e.  It is recommended that the Soldier receive full administrative relief in this matter and his DOR adjusted from 7 February 2012 to 1 December 2010.  It is also recommended that the Soldier receive all related pay and benefits related to the correction.  

	f.  The State has not provided any additional information indicating their concurrence or non-concurrence with this recommendation.

12.  The applicant was provided with a copy of this advisory opinion but he did not respond.  

13.  NGR 600-101 prescribes policies and procedures for ARNG WO personnel management.  Chapter 7 states that promotion of WO's in the ARNG is a function of the State.  As in original appointments, a WO promoted by State authority has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must satisfy the requirements for this promotion.  Promotions will be based on the Department of the Army proponent duty military occupational specialty certification via satisfactory completion of the appropriate level of military education, time in grade, demonstrated technical and tactical competence, and potential for service in the next higher grade as determined by an FRB. 

14.  NGB Policy Memorandum 11-015, dated 14 June 2011, subject:  Federal Recognition of WO's in the ARNG, states that ARNG WO's are initially appointed and are also promoted by the State or Territory to which the officer is assigned.  The Chief, NGB, reviews and approves those actions.  Title 10, U.S. Code, sections 571b and 12241b, introduce a requirement that all WO appointments and promotions to chief WO grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WO's and promotion to higher grades by warrant or commission will be issued by the President (delegated to the Secretary of Defense).  Requests for appointment will be staffed through the Department of the Army Office of the Deputy Chief of Staff, G-1.  This requirement may add 90 to 120 days (or more in some instances) to the process for approval for appointments or promotions.

15.  NGB Policy Memorandum Number  07-026 provides that, effective 14 August 2007, States are authorized to appoint Soldiers in the rank/grade of SFC/E-7 to the rank/grade of CW2/W-2 if they meet the criteria below:
	a.  SFC who has served a minimum of 2 consecutive years as a SFC may be appointed to CW2 in one of two ways:

		(1)  SFC who is certified by the Department of the Army MOS proponent prior to the date of initial appointment (attendance of WOBC 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 5 years.

		(2)  SFC who is eligible for MOS training may be promoted to CW2 after completion of WOCS and WOBC.  Constructive credit for WOCS may be granted if the Soldier satisfactorily completed an OCS within the previous 5 years.

	b.  Appointment for master sergeant through command sergeant major remains the same.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SFC/E-7 on 16 May 2008 and he completed WOCS on 28 June 2010.  He was considered by an FRB that found him qualified for appointment and extension of Federal recognition in the ARNG.  Accordingly, he executed an oath of office on 29 June 2010.

2.  He was granted temporary Federal recognition effective 29 June 2010 upon completion of WOCS and execution of the NGB Form 337.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of California for endorsement to NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken.

3.  He completed WOBC on 1 December 2010.  However, he could not be extended Federal recognition for promotion to CW2 because the NGB had not yet extended him Federal recognition for his initial appointment.  This wasn't done until 27 July 2011 – albeit with an effective date and DOR as 29 June 2010. 

4.  It is clear that an administrative error denied the applicant timely permanent Federal recognition for promotion to CW2.  Since he had served as an SFC/E-7 for 2 years and since he successfully completed WOCS and WOBC, he should have been promoted to CW2 on 1 December 2010, the date he completed WOBC.  Therefore, he is entitled to correction of his records to show his DOR adjusted from 7 February 2012 to 1 December 2010 and payment of all related pay and benefits related to the correction.  

BOARD VOTE:

__x___  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* amending NGB Special Orders Number 170 AR, dated 27 July 2011, to show the applicant was extended Federal recognition in the grade of CW2 effective 1 December 2010
* paying the applicant 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)                                         AR20120008635



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ABCMR Record of Proceedings (cont)                                         AR20120008635



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