MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 April 1999
	DOCKET NUMBER:   AC97-06027
				   AR1999018961

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

	Mr. Loren G. Harrell		Director	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his retirement grade be changed from chief warrant officer 2 (W-2) to his highest commissioned officer grade held  on active duty, captain (O-3).

APPLICANT STATES:  When he went through retirement outprocessing at Fort Bragg, North Carolina, he asked when his retirement grade would be upgraded to captain and was told at the 30 year point.  When he reached the 30 year mark,  he called the Army Reserve Personnel Center (ARPERCEN) to find out why they had not advanced him on the retired list.  The verbal and later written response was that he originally should have retired as a captain, based on his 14-plus years active commissioned service.  He encloses a copy of the letter from ARPERCEN concerning his retirement grade.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned a Regular Army second lieutenant, Artillery, on 5 June 1965.  He attained the rank of captain on 9 June 1972.

On 27 November 1979 the applicant was discharged for failure to be selected for permanent promotion.  He was simultaneously appointed and called to active duty as a Reserve warrant officer.  He had 14 years, 5 months and 23 days of active commissioned service.

The applicant voluntarily retired from active duty on 1 August 1985 at Fort Bragg as a chief warrant officer 2.  He had a total of 20 years, 1 month and 26 days of active creditable service.

Army Regulation 635-100, in effect at the time, set forth the basic authority for separation of officer personnel.  Chapter 4 of that regulation establishes procedures for the implementation of laws and policies governing the nondisability retirement of officers, specifically Title 10 of the United States Code. It provides, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a warrant officer retires in the grade held on the day before the date of retirement, or in any higher warrant officer grade served on active duty satisfactorily for at least 31 days.  When his or her active service (plus service on the retired list) totals 30 years, any retired warrant officer of the Army is entitled to be advanced on the retired list to the highest commissioned grade he or she served satisfactorily on active duty.

A 30 December 1996 ARPERCEN letter informs the applicant that he should have retired as a captain.  In the processing of this case, a staff member of the Board contacted the Army Reserve Personnel Command and was informed by an official of the Retired Pay Division that the letter is incorrect and the applicant should have been advanced on the retired list as he initially requested.  The staff member was also informed that the person who signed the letter no longer works there.

On 4 February 1999 the Army Grade Determination Review Board determined the highest grade in which the applicant served satisfactorily for the purpose of computation of retired pay was captain (O-3).

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s retirement in pay grade W-2 was appropriate in accordance with applicable law and regulations, since that was the grade he held on the day before his date of retirement.

2.  The applicant should have been advanced to the rank of captain when his active service and service on the retired list totaled 30 years.  The letter from ARPERCEN advising him that he should have retired as a captain does not conform with the law and governing regulations, and is incorrect.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

(Note:  The Support Division, Army Review Boards Agency, St Louis, is directed to coordinate with AR-PERSCOM, Retired Pay Division, to advance the applicant on the retired list to the rank of captain effective 5 June 1995.)

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-06027/AR1999018961	
SUFFIX		
RECON		
DATE BOARDED	19990414	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.	136.00	
3.		
4.		
5.		
6.