PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 October 2002                   
	DOCKET NUMBER:   AR2001065886

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Victoria A. Donaldson		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. James A. Anderholm		Member	
	Mr. Melvin H. Meyer		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests in effect, that he be granted Federal Recognition retroactively to 29 June 1992 and that his appointment in the Oregon Army National Guard (ORARNG) be corrected to show that he was appointed as a chief warrant officer two (CW2) in military occupational specialty (MOS) 550A (Legal Administrator).  The applicant further requests that he be considered MOS qualified without attainment of further educational requirements and that he be paid all back pay and allowance to which he is entitled from the present to
7 November 1996. 

3.  The applicant states that he was initially appointed in the ORARNG as a CW2 with the MOS 550A.  He contends that at that time there was no requirement in Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) for a former commissioned officer to be reviewed by the appropriate warrant officer MOS proponent prior to certification for award of an MOS.

4.  The applicant further contends that he completed both the NGB Form 337 (Oath of Office) and NGB Form 89 (Proceedings of a Federal Recognition Examining Board) in June 1992.  

5.  The applicant states that he was unaware that his Federal Recognition request was returned from the National Guard Bureau (NGB) for verification of his security clearance.  He further states that his security clearance was verified and the packet was returned to NGB for processing of his Federal Recognition in February 1993.

6.  The applicant states that he was initially appointed and paid as a CW2 from 29 June 1992 to 6 November 1996 and that from 7 November 1996 to the present he was appointed and paid as a warrant officer one (WO1).  

7.  The applicant contends that no formal action was taken to change his status from CW2 to WO1.

8.  The applicant states that he is a former commissioned offer in the United States Marine Corps Reserves (USMCR) and that while he was a member of the USMCR he held the MOS 4402 (judge advocate).  

9.  The applicant contends that he was qualified for award of the MOS 550A based on applicable regulations in effect at the time of his initial appointment.  

10.  The applicant further argues that based on National Guard Regulation 
600-101 (Warrant Officers-Federal Recognition and Personnel Actions), in effect at the time of his initial appointment, he was qualified for appointment in the grade of CW2 in the ORARNG based on his service as a commissioned officer in the USMCR.

11.  The applicant contends that he was granted temporary Federal recognition on 29 June 1992 by the ORARNG and that he was qualified to hold the position of Legal Administrator in MOS 550A for the ORARNG.  

12.  The applicant argues that he performed his duties as the Legal Administrator for the Office of the State Judge Advocate, ORARNG, in a creditable and honorable manner and that he was not advised when he assumed those duties that he would have to complete any subsequent schooling.

13.  The applicant contends that for "reasons unknown" his status was "questioned" and that he was advised there was "some question" with regards to his status and the matter was being investigated.

14.  The applicant states he has memorandums and correspondence "directed at others regarding his status, but does not have anything directed to him."

15.  The applicant argues that he has been serving in the ORARNG since 
29 June 1992 and that no official action was taken to reduce his rank or merit a reduction in his pay. 

16.  In support of this application, the applicant provided a copy of a memorandum for the Chief of Staff of the Oregon Army National Guard; an excerpt of National Guard Regulation 600-101, dated 1 April 1989; an excerpt for Army Regulation 611-112, dated 26 June 1995; a summary of status memorandum prepared by the Chief of the ORARNG,SIDPERS Interface Branch; a time line of events; an Army National Guard Retirement Points History Statement (RPAS) dated 14 September 2001; a copy of DD Form 214 MC (Report for Separation from Active Duty) dated 21 April 1976; a copy of portions of an Appointment Acceptance and Record; an unidentified document that list chronological Active Federal Service; eight certificates for awards; a copy of the Proceedings of a Federal Recognition Examining Board dated 3 December 1991; copies of DA Form 67-8 US Army Officer Evaluation Report (OER) for the periods 29 June 1992-28 June 1993, 29 June 1993-28 June 1994, 29 June 1994-28 June 1995; an Oath of Office certificate dated 29 June 1992; and a two page FAX transmission cover page.

17.  The applicant’s military records show that he was appointed as a first lieutenant in the Marine Corp Reserve on 24 August 1966.  He was promoted to the rank of captain on 4 September 1970 and promoted to the rank of major in the USMCR.  He was appointed in the Oregon Army National Guard in the grade of CW2 with the MOS of 550A0 effective 29 June 1992.  The applicant was assigned at the Legal Administrator for the Office of the State Judge Advocate on 29 June 1992 and is currently serving in that position.

18.  The applicant's service personnel records show he was appointed in the ORARNG and was granted temporary Federal Recognition on 29 June 1992.  There is no evidence that he was granted permanent Federal Recognition by the Chief, National Guard Bureau as requested by the ORARNG in 1992.

19.  A NGB Form 89, dated 29 June 1992, recorded the proceedings of a Federal Recognition Board.  A colonel in the position of Director of Military Personnel for the ORARNG authenticated the NGB Form 89, dated 29 June 1992, showing that the applicant was extended Federal Recognition as a "CW2 in the MOS 550A0 from 29 June 1992 and assigned to the position Legal Administrator (MOS 550A0), Para 118, Line 04 HHC, 41st Inf Bde."

20.  The NGB Form 89, dated 29 June 1992, also contains the following entry:     "The applicant was found to be fully and professionally qualified for appointment in the grade of CW2, MOS 550A0 (Legal Administrator)."

21.  Evidence of record shows that the applicant executed an Oath of Office on 29 June 1992 [hereafter referred to as Oath of Office #1] and that he was extended temporary Federal Recognition in the grade of CW2 effective 29 June 1992.

22.  As required by regulation, the request for Federal Recognition was forwarded by the ORARNG to NGB for processing.  There is no evidence in the applicant's service personnel records which shows the June 1992 request for Federal Recognition was denied by the Chief, NGB.

23.  A memorandum submitted by the Chief of the SIDPERS Interface Branch ORARNG, states that NGB returned the 1992 request for Federal Recognition for verification of applicant's security clearance.  Personnel in the ORARNG verified that the applicant had a valid security clearance and the request for Federal Recognition was returned to NGB for processing.  

24.  Evidence of record shows that the applicant's official military personnel file contains OERs that cover the period 29 June 1992 through 28 June 1996 which show in Part Ic (grade) the entry of "CW2" and in Part Ig (PMOS) the entry of "550A0."  Part IIIa (Principal Duty Title) contains the entry "Legal Administrator" and Part IIIb (SSI/MOS) contains the entry "550A0."  The OERs also contain the entry "920629" in Part Id (date of rank).

25.  The RPAS prepared by the ORARNG shows that the applicant was coded as "B1" which identifies him as an Army National Guard unit member for the period 29 June 1992 to the present.  

26.  The applicant's records contain OERs for the period of 7 November 1996 through 31 May 1998.  These OERs show in Part Ic (grade) the entry " WO1" and in Part Ig (PMOS) no entry.  Part IIIa (Principal Duty Title) contains the entry "Legal Administrator" and Part IIIb (SSI/MOS) contains the entry "550A0."  The OERs also contain the entry "961107" in Part Id (date of rank).

27.  The applicant's records contain a DA Form 67-9 (Officer Evaluation Report) for the period 1 June 1998 through 31 May 1999.  The DA 67-9 shows the entry "WO1" in Part Ic (rank) and the entry "1996 11 07 in Part Id (date of rank).  This report also shows in Part IIIa (Principal Duty Title) the entry " Legal Administrator" and in Part IIIc (Position ADC/BR) the entry "550A0."

28.  The applicant's record contain an Oath of Office which he executed on 7 November 1996 [hereafter referred to as Oath of Office #2] in the grade of WO1.

29.  In the processing of this case, an advisory opinion was requested from the Chief, National Guard Bureau.  The staff of the National Guard Bureau provided an opinion, dated 14 August 2002.  The applicant was provided a copy of the NGB advisory opinion for review and comment.  The applicant acknowledged receipt and concurred with the NGB advisory opinion.

30.  The NGB advisory opinion stated that the applicant was appointed as a CW2 on 29 June 1992 in accordance with AR 135-100 and NGR 600-100.  On 
1 September 1994, a new version AR 135-100 was implemented.
That regulation required that Warrant Officers be appointed in the grade of WO1 or have proponent approval for appointment at a higher grade.  

31.  In addition, the NGB opinion states that the applicant's security clearance was verified and resubmitted to the National Guard Bureau in February 1993 prior to the implementation of the 1994 version of AR 135-100.

32.  The advisory opinion concluded that Federal Recognition in the grade of CW2 should be granted with a retroactive date of 29 June 1992 for the following reasons.  Foremost is the fact that the regulation which governed the applicant's appointment in 1992, provided at the time of his appointment the applicant should have been appointed as a CW2 and that the provisions of this regulation did not changed until 1994.  The applicant's Federal Recognition was inexplicably withdrawn and he was reappointed as a WO1 for reasons unknown. The opinion states "without specific reasons, it appears that Federal Recognition was withdrawn erroneously and should be restored."

33.  NGR 600-101 (Warrant Officers-Federal Recognition and Related Personnel Actions), dated 6 June 1986, provides in chapter 2 for appointment of warrant officers.  Specifically, in section 2-4 (Appointment grade) it states " Appointments will be as WOs, W-1, except: b. Commissioned and former commissioned officers who have served a minimum of 2 years active service in a commissioned status may be appointed in the grade of CW2, W-2, if CNGB affirms there is a high correlation between the commissioned service and the warrant officer MOS sought."

34.  Section 2-5 of NGR 600-101, dated 6 June 1986, provides that there is a three check appointment process that includes the following steps: 1) Check one Federal recognition board determines that applicants met all eligibility criteria except for check two and check three.  The federal recognition board results will remain valid, regardless of the time required for warrant officer entry level training, as long as the warrant officer candidate remains otherwise qualified.  See paragraph 2-10a for personnel exempt from the check two and check three requirements.  2) Check two – Individual attends and graduates from a Warrant Officer Entry Course (WOEC or WOTC). 3) Check three – Warrant officer candidate successfully completes technical certification administered by the MOS proponent.

35.  Section 2-10a of NGR 600-101, dated 6 June 1986, states that individuals may be  selected from commissioned officers and warrant officers of the Army (other than Regular Army) and former commissioned officers and warrant officers of any component with honorable and creditable service compatible with the MOS contemplated.  These personnel will not attend WOEC or WOTC.  They are exempted from the Check 2 and Check 3 requirements.  They will be direct appointed. 

36.  Section 9-19 of NGR 600-101, dated 6 June 1986, provides guidance for the actions of the Chief, National Guard Bureau for requests for Federal Recognition of warrant officers.  Specifically, it states in paragraph 9-19f that the Chief, National Guard Bureau will notify the State Adjutant General if, upon review of all records an applicant is not granted Federal Recognition.  Temporary Federal Recognition, if in effect, will be withdrawn.

37.  Chapter 10 of NGR 600-101 provides for the termination of appointment and withdrawal of Federal recognition for ARNG warrant officers.  It states that the withdrawal of Federal recognition of a warrant officer is a function of the Chief, National Guard Bureau.  

38.  NGR 600-101 effective 1 September 1994, governs policies and procedures for Army National Guard (ARNG) warrant officer personnel management and implements the provisions of the Warrant Officer Management Act of 1992 pertinent to ARNG warrant officers.  

39.  AR 135-100 (Appointment of Commissioned and Warrant Officers of the Army), dated 1 June 1990, provides in section 1-9a(7)b2 (Grade on appointment) that commissioned and former commissioned officers who have served a minimum of 2 years active service in a commissioned status may be appointed in the grade of CW2.
CONCLUSIONS:

1.  The applicant's records show that he was initially appointed on 29 June 1992, in the grade of CW2 in the ORARNG and that he executed the appropriate oath of office.

2.  The Board determined that the initial appointment and Federal Recognition was in accordance with the governing regulations in effect at the time.

3.  ORARNG sent the applicant's request for Federal Recognition in the grade of CW2 in June 1992 to NGB for processing as required by regulations. 

4.  NGB returned the 1992 application for Federal Recognition without action and requested that ORARNG verify the applicant's security clearance. 

5.  ORARNG verified the applicant held the necessary security clearance and returned the application for Federal Recognition to NGB in February 1993.

6.  There is no evidence the request for Federal Recognition was finalized by NGB or that Federal Recognition orders were published by NGB in response to the 1992 request by the ORARNG.

7.  There is no evidence the Chief of the National Guard Bureau notified the Adjutant General of the State of Oregon that the applicant was not eligible for permanent Federal Recognition or that the applicant was not granted permanent Federal Recognition as required by regulation. 

8.  There is no evidence in the applicant's service records which shows the temporary Federal Recognition in the grade of CW2 as provided by the NGB Form 89, effective 29 June 1992 was withdrawn.

9.  The applicant's OERs for the period 29 June 1992 through 28 June 1996 show that he served as a CW2 in the MOS 550A.

10.  Records show that the applicant executed a second oath of office and accepted appointment as a WO1 in the MOS 550A on 7 November 1996.

11.  There is no evidence which shows that the first oath of office and appointment to CW2 were voided or otherwise withdrawn.

12.  Notwithstanding the NGB advisory opinion, there is no evidence that the applicant was extended permanent Federal Recognition or that Federal Recognition was withdrawn.

13.  Based on the foregoing the Board determined:

	a.  In accordance with regulations in effect at the time the applicant was eligible and qualified for accession in the ORARNG with appointment as a CW2 in the MOS 550A.

	b.  The applicant was extended temporary Federal Recognition by ORARNG as a CW2 in the MOS 550A and was paid in this capacity from 
29 June 1992 until 6 November 1996.

	c.  The applicant executed an oath of office in the grade of CW2 on 
29 June 1992 in the ORARNG.

	d.  There is no evidence that the temporary Federal Recognition was withdrawn or otherwise terminated during the period 29 June 1992 to
6 November 1996.  

	e.  The applicant executed a second oath of office on 7 November 1996 as a WO1 in the MOS 550A. 

	f.  The applicant has served continuously from 7 November 1996 to the present as a WO1 in the MOS 550A.

	g.  The staff of the Chief of the National Guard Bureau has opined that the applicant is entitled to service as a CW2 in MOS 550A from 29 June 1992 to the present.

14.  In view of the facts in paragraph 13 above, the Board determined that as a matter of equity the applicant is entitled to correction of his records to show he served as a CW2 in the MOS 550A in the ORARNG from 29 June 1992 to the present; he is entitled to all back pay and allowances for the difference between WO1 and CW2 for the period 7 November 1996 and the present; and he is entitled to promotion consideration to CW3 if qualified and eligible.

15.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  Insofar as records of the Oregon Army National Guard are concerned, the ABCMR recommends that the Adjutant General of the State of Oregon:

	a.  Appoint the individual concerned in the ORARNG in the grade of CW2 in the MOS 550A effective 29 June 1992;

	b.  Revoke appointment orders and oath of office, dated 7 November 1996, appointing the individual concerned to the grade of WO1 in the MOS of 550A;

	c.  Correct all personnel and pay records to show that the individual concerned was appointed in the ORARNG, in the grade of CW2, with the MOS 550A, effective 29 June 1992 and has served in that grade and MOS since that date to the present.

2.  It is further recommended that the Adjutant General of the State of Oregon determine if the individual concerned is eligible and qualified for promotion to CW3 and to consider him for advancement if appropriate.

3.  That the Chief of the National Guard Bureau grant the applicant Federal Recognition effective 29 June 1992 in the grade of CW2.

4.  That upon correction of the records as recommended and directed in paragraph 1 and 2 above, the Defense Finance and Accounting Services:

a.  Audit the pay account for the individual concerned to determine all monies due to the individual concerned for the difference in pay between WO1 and CW2 from 7 November 1996 to the present.

b.  Pay the individual concerned all monies owed.

BOARD VOTE:  

__JLP___  ____JEA_  _MHM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Jennifer L. Prater_____
		        CHAIRPERSON

INDEX

CASE ID	AR2001063444	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021008	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	125.0200.0000	
2.		
3.		
4.		
5.		
6.