IN THE CASE OF:	   

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120021419 


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) for warrant officer one (WO1) from 2 October 2011 to 1 May 2009.

2.  The applicant states:

   a.  He reverted from the rank of second lieutenant (2LT) to WO1 at the request of the Arkansas Army National Guard (ARARNG).  State appointment orders were generated on 1 May 2009, but no request for Federal Recognition was submitted.  This was not discovered until Federal Recognition as a chief warrant officer two (CW2) was requested over two years later.  A new WO1 board was conducted and Federal Recognition was awarded on 2 October 2011.

   b.  He was an interstate transfer from the Louisiana ARNG (LAARNG) to the ARARNG as a 2LT on 16 April 2009.  He was state recognized as a WO1 on 1 May 2009.  His information was entered into the Standard Installation/Division Personnel System (SIDPERS), but his records were never submitted to the National Guard Bureau (NGB) for Federal Recognition due to no fault of his own. The ARARNG conducted a new Federal Recognition Examining Board (FREB) and received Federal Recognition orders appointing him with an effective date of 2 October 2011.

3.  The applicant provides:

* chronological outline

* Officer Record Brief
* Personnel Qualification Record – Officers/WOs
* DA Form 705 (Army Physical Fitness Test Scorecard)
* Individual Medical Readiness
* 2008 LAARNG appointment orders
* 2009 ARARNG WO1 appointment orders
* interstate transfer orders
* 2009 and 2011 FREB Proceedings
* DA Form 1059 (Service School Academic Evaluation Report)
* Recommendation for Promotion to CW2
* 2011 NGB 62E (Application for Federal Recognition as an ARNG Officer of WO and Appointment as a Reserve Commissioned Officer or WO of the Army in the ARNG of the United States
* Orders Number 298-816
* 2009 and 2011 DA Forms 71 (Oath of Office – Military Personnel)
* Special Orders (SO) 69 AR
* 2012 ARARNG memorandum in support of applicant's request

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 was appointed in the LAARNG as a 2LT on 11 August 2008.

3.  On 2 February 2009, the ARARNG recommended the applicant for appointment in the WO Aviation Program.  

4.  He was appointed in the ARARNG as a 2LT on 16 April 2009 and executed a DA Form 71.


5.  Orders Number 111-1103 were issued by the LAARNG, on 21 April 2009, for an interstate transfer of the applicant to the ARARNG with an effective date of 16 April 2009.

6.  On 6 May 2009, an FREB determined the applicant qualified for entry into the WO program as a WO1.

7.  He was appointed in the ARARNG as a WO1 with an effective date of 1 May 2009.  On 13 October 2010, he completed the WO Basic Course (WOBC).

8.  On 10 July 2011, an FREB determined the applicant qualified for Federal Recognition as a CW2.

9.  On 2 October 2011, a second FREB determined the applicant qualified for appointment as a WO1.

10.  Orders Number 298-816 were issued by the ARARNG, on 25 October 2011, appointing the applicant as a WO1 with an effective date of 2 October 2011.  He executed a DA Form 71 on the same day.

11.  SO 69 AR were issued by the ARARNG, on 27 February 2012, reappointing the applicant as a WO1.

12.  In a memorandum, dated 15 March 2012, the Deputy Chief of Staff, Personnel, ARARNG, recommended approval of the applicant's request.  The ARARNG official states:

	a.  Originally, the applicant was interstate transferred to the ARARNG as a 2LT on 16 April 2009.  He was subsequently appointed to WO1 by a State FREB on 1 May 2009.  Due to no fault of his own, his WO packet was processed into SIDPERS without his packet being loaded into ePacket for submission to the NGB for Federal Recognition.  This error wasn't discovered until they processed him for promotion to CW2.  He was separated as a 2LT on 30 April 2009 and an NGB Form 22 (Report of Separation) was never issued.  His original source of commission was a Direct Commission and he completed his WOBC on 13 October 2010.

	b.  The NGB recommends one or more of the following three courses of action:



		(1)  The applicant's preference is to be allowed to revert back to 2LT with time in grade adjustment back to his original appointment date of “27 March 2008.”  They would support this action based off the current needs of the organization.

		(2)  Reimburse the officer with pay difference between 2LT and WO1 for the period 1 May 2009 through 2 October 2011.

		(3)  Allow the immediate promotion of the officer to CW2 with an adjusted DOR of 21 July 2011 (the date of his erroneous promotion to CW2).

	c.  The applicant was a major asset in the 77th Theater Aviation Brigade's recent deployment and has consistently served their organization honorably.  This entire situation is extremely unfortunate and in no way is the fault of the applicant.  Since this issue occurred, they have taken great steps in the tracking and accountability of Federal Recognition packet submission.

13.  In December 2012, an advisory opinion was issued by the Chief, Personnel Division, NGB, Arlington, Virginia, wherein he recommended approval of the applicant's request.  The NGB official stated:

   a.  The applicant’s original source of commission was a Direct Commission (2LT).  He later completed WOBC on 13 October 2010 as an UH-60 Pilot.  He was an interstate transfer to the ARARNG as a 2LT on 16 April 2009.  According to the ARARNG, he was subsequently appointed to WO1 by the State FREB on 1 May 2009.  Due to no fault of his own, his WO packet was processed into SIDPERS without his packet being submitted to the NGB for Federal Recognition.  The ARARNG did not discover this error until they were processing him for promotion to CW2 and the NGB informed them that the applicant was still a 2LT in their records.
   
   b.  The applicant was separated by the State as a 1LT on 30 April 2009 and an NGB Form 22 was never issued.  Therefore, federally he was still considered a 2LT until 2 October 2011, when the State resubmitted a new Federal Recognition packet in order for him to be recognized as a WO.

   c.  The State and the officer have proposed various courses of action to rectify this error.  The State suggested to allow him to revert back to 2LT; however, that would adjust his promotion eligibility to first lieutenant as well as captain.  The officer’s preference would be to allow the immediate promotion to CW2 with an adjusted date of rank of 21 July 2011, which is the date of his erroneous promotion to CW2.  The WO policy branch concurs with this course of action.
   d.  Again, this situation is of no fault of the Soldier.  The State takes full responsibility and has implemented precautionary measures to prevent this from reoccurring.
   
14.  The opinion was forwarded to the applicant for acknowledgement/rebuttal on 4 December 2012.  He did not respond.

15.  National Guard Regulation 600-101 prescribes the policies and procedures for ARNG WO personnel management.  The regulation states:

   a.  WO appointments and promotions must be Federally recognized.  WO's may be examined for promotion not earlier than 3 months in advance of completing the prescribed promotion requirements so that, if recommended by a FREB, promotion may be effected on the date the promotion requirements are met.  FREB's convening to examine promotion of WO's who have passed their promotion eligibility date, may, if so recommended and determined fully qualified on their promotion eligibility date, consider granting temporary Federal recognition retroactive to that date, but not earlier than 90 days from the date of the FREB.

   b.  Paragraph 7-1 specifies that appointment and promotion of WO's in the ARNG is a function of the State Adjutant General.  A WO1 must complete a minimum of 2 years of time in grade for promotion to CW2 and a WOBC.

16.  National Defense Authorization Action (NDAA) for Fiscal year 2001, dated 22 July 2011, subject: Changes to WO Federal Recognition Process, states 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) effective 7 January 2011.  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.  This new requirement removed the authority from NGB to approve and publish all WO Federal recognition orders.

17.  Title 32, U.S. Code, section 308, allows the Secretary of the Army to extend temporary Federal recognition as an officer of the ARNG to any person who has passed the examination prescribed in Title 10, U.S. Code, section 307, pending his/her appointed as a reserve officer of the Army.  




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant met the eligibility criteria for appointment as a WO1 on 1 May 2009.  However, through no fault of his own his WO packet was not submitted to the NGB for Federal Recognition.  When the ARNG began processing him for promotion to CW2 it was discovered he was still a 2LT in their records.  He had been separated from the State as a 2LT on 30 April 2009; however, an NGB Form 22 was never issued.  On 2 October 2011, he was subsequently recognized as a WO.  As a matter of equity, his records should be corrected to show he was extended Federal Recognition as a WO1 on 1 May 2009 with the same date of rank.  

2.  Due to changes to WO's Federal recognition process as a result of the 2011 NDAA, the promotion of a WO1 to CW2 is now issued by the President of the United States and is delegated to the Secretary of Defense.  A statutory change in the procedures for the promotion of WO's mandated by the 2011 NDAA requires that WO's be placed on a scroll and staffed to the President (delegated to the Secretary of Defense) for approval.  The law took effect on 7 January 2011.

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

* voiding the applicant's appointment orders, dated 25 October 2011, and resulting special orders and oath of office, and declaring them to be of no force or effect


* showing he was appointed in the ARARNG and extended Federal recognition as a WO1, with a date of rank and effective date of 1 May 2009, with all appropriate adjustment of pay and allowances



      __________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)                                         AR20120021419





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ABCMR Record of Proceedings (cont)                                         AR20120021419



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