IN THE CASE OF:	  

		BOARD DATE:  4 June 2013

		DOCKET NUMBER:  AR20120020954 


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:

* adjustment of initial effective date of appointment and date of rank (DOR) to warrant officer one (WO) from 19 June 2012 to 31 July 2010
* promotion to chief warrant officer two (CW2)
* restoration of back pay and allowances

2.  The applicant states, in effect, his initial appointment was delayed in submission to the National Guard Bureau (NGB).  He was appointed on 31 July 2010 and his packet was uploaded on 2 October 2010 but was rejected for unknown reasons.  It was reloaded in July 2011 but rejected again due to administrative errors.  His State failed to follow up and ensure his Federal recognition for initial appointment was timely.  This has cost him timely promotion to CW2.  The error occurred through no fault of his. 

3.  The applicant provides:

* Statement of support from the Ohio Army National Guard (OHARNG)
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board (FRB)) (appointment)
* Orders 215-304, dated 3 August 2010 (appointment)
* NGB Form 337 (Oaths of Office)
* Federal Recognition Packet Entry
* Second NGB Form 89 (appointment)
* Orders 144-938, dated 23 May 2012 (second appointment)
* Orders 150-986 (amendment)
* Unit Manning Roster
* Recommendation for promotion
* Individual Medical Readiness
* Third NGB Form 89 (promotion)
* Special Orders (SO) Number 259 AR (revocation)
* SO Number 4 AR (Military Occupational Specialty (MOS))
* SO Number 387 AR (initial appointment)
* DA Form 1059 (Service School Academic Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  The applicant previously served in the OHARNG in an enlisted status with multiple periods of mobilization.  

2.  On 20 February 2009, an FRB was held by the OHARNG to determine if the applicant was qualified to be awarded Federal recognition for appointment in the ARNG upon completion of Warrant Officer Candidate School (WOCS).  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  The FRB also recommended he be granted Federal recognition.

3.  On 31 July 2010, the applicant completed WOCS and executed an oath of office in the OHARNG.  Consequently, on 3 August 2010, the Joint Force Headquarters, OHARNG published Orders 215-304 appointing him as a WO in the OHARNG, effective 31 July 2010.

4.  On 2 October 2010, the OHARNG electronically loaded his appointment packet with allied documents to the NGB for Federal recognition.  However, it does not appear his packet was processed.  

5.  He attended the Automated Maintenance WO Basic Course from 28 February to 26 March 2011 at Fort Lee, VA and graduated on this date.  As such, on 3 January 2012, the NGB published SO Number 4 AR extending him Federal recognition for award of MOS 915A (Automotive Maintenance Officer). 

6.  On 19 April 2012, his immediate commander recommended him for promotion to CW2.  The recommendation was endorsed by his battalion and brigade commanders. 

7.  On 22 May 2012, an FRB was held by the OHARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion to CW2. The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  The FRB also recommended he be granted Federal recognition.

8.  On 23 May 2012, based on the recommendations by the chain of command and the FRB's findings, the Joint Force Headquarters, OHARNG published Orders 144-938 promoting him to CW2 with an effective date and DOR as 22 May 2012, later amended to 31 July 2012. 

9.  On 19 June 2012, after discovering that his initial appointment packet had not been processed for permanent Federal recognition, a second FRB was held by the OHARNG to determine if the applicant was qualified to be awarded Federal recognition for appointment in the ARNG upon completion of WOCS.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  The FRB also determined he was eligible for promotion to CW2.  The FRB further recommended he be granted Federal recognition.

10.  On 31 October 2012, the NGB published SO Number 387 AR extending Federal recognition for initial appointment in the ARNG with an effective date and DOR of 19 June 2012. 

11.  An advisory opinion was obtained on 15 April 2012 in the processing of this case.  The Chief of the Personnel Division, NGB, recommended approval of the applicant’s request to adjust his initial appointment date to 31 July 2010.  Additionally, since he completed the Automotive Maintenance WO Course on 23 April 2011, he was eligible for and should be promoted to CW2 on 23 April 2011.  He should also be entitled to back pay and allowances. 

12.  The applicant was provided a copy of this advisory opinion; and he agreed.  However, he pointed out that the date he was eligible for promotion to CW2 is 31 July 2012, not 23 April 2012 as the NGB opined. 

13.  Title 10, U.S. Code, section 1211 (Officers: ARNG of the United States) states when an officer of the ARNG to whom temporary Federal recognition has been extended is appointed as a Reserve for service as a member of the ARNG of the United States, his appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.

14.  National Guard Regulation (NGR) 600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures for ARNG warrant officer personnel management.  Chapter 7 states that promotion of warrant officers in the ARNG is a function of the State.  As in original appointments, a warrant officer 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 MOS certification via satisfactory completion of 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.  Paragraph 2-4b states the effective date of Federal recognition is the date the warrant officer executed the oath of office (NGB Form 337).

15.  A warrant officer must complete the minimum years of promotion service as shown in Table 7-1 (for promotion to CW2, two years in the lower grade) and the education requirements of Table 7-2 (completion of WOBC) of NGR 600-101 to attain eligibility for promotion and receive Federal recognition in the higher grade. Additionally, a WO must be medically fit and meet the height and weight standards as well as pass the Army Physical Fitness Test.

16.  NGB Policy Memorandum 11-015, Subject: Federal Recognition of Warrant Officers in the ARNG, dated 14 June 2011 states that ARNG WOs 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 warrant officer grades in the ARNG be made by the President of the United States.  As a result, effective 7 January 2011, all initial appointments of WOs 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, Deputy Chief of Staff, G-1.  This requirement may add 90 days or more to the process for approval for appointments or promotions to be completed.

17.  Department of the Army, Officer of the Deputy Chief of Staff, G-1, Amendment to Policy Memo, dated 14 January 2005, states all Reserve Component officers in the rank of second lieutenant will be promoted to first lieutenant when they meet 24 months time in grade requirements for promotion and complete the Officer Basic Course.  This would also apply to WO1, who would be promoted to CW2 when they meet the time in grade requirements (24 months) for promotion and complete the Warrant Officer Basic Course.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was recommended by an FRB for appointment in the ARNG and he executed an oath office on 31 July 2010.  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 the NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken. 

2.  He completed the Automotive Maintenance Officer Basic Course and he was recommended for promotion to CW2 by his chain of command and an FRB.  However, when this action took place, it was discovered that his initial appointment packet had not been processed and he had not been extended Federal recognition for his initial appointment.  

3.  As such, a second FRB was convened by the OHARNG on 19 June 2012 and recommended he be granted Federal recognition.  Based on this second date, NGB issued orders awarding him permanent Federal recognition effective 19 June 2012.  This administrative error denied him both timely Federal recognition for initial appointment and timely promotion to CW2.

4.  It is clear that an administrative error denied him permanent Federal recognition effective 31 July 2010.  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 31 July 2010.

5.  Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to CW2 effective 31 July 2012, the date he met the 2-years time in grade requirements.  Contrary to the NGB's advisory opinion, the applicant 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 as 31 July 2012 and to receive back pay and allowances 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 all Department of the Army and the Army National Guard records of the individual concerned be corrected by:

* amending Federal Recognition SO Number 387 AR, dated 31 October 2012, to show he was extended Federal Recognition in the grade of WO effective 31 July 2010 
* issuing Federal Recognition Special Orders to show he was extended Federal recognition for promotion to CW2 effective and with a date of rank of 31 July 2012
* paying to him all 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)                                         AR20120020954



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ABCMR Record of Proceedings (cont)                                         AR20120020954



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