MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           17 October 2002
	DOCKET NUMBER:   AR2002079077

	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. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Richard T. Dunbar		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: In effect, that he be advanced on the Retired List to the rank and pay grade of chief warrant officer three/W-3 (CW3/W-3).

APPLICANT STATES:  In effect, that he was promoted to CW3 in the United States Army Reserve (USAR) on 10 July 1990.  He states that he received a copy of the promotion memorandum while serving in Operation Dessert Storm on 23 January 1991.  In support of his application, he submits a copy of the promotion memorandum to CW3/W-3.

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

He served on active duty in an enlisted status for 9 years, 1 month, and 13 days, from 26 May 1972 to 9 July 1981, at which time he was honorably discharged, in the rank and pay grade of staff sergeant/E-6 (SSG/E-6), in order to accept a warrant officer appointment.  

On 10 July 1981, the applicant was appointed a warrant officer one (WO1) in the United States Army Reserve (USAR) and entered active duty in that status.  He was promoted to chief warrant officer two/W-2 (CW2/W-2) on 10 July 1983. The applicant served on active duty as a warrant officer for 7 years, 2 months, and 
26 days.  On 5 October 1998, he was honorably separated, in the rank and pay grade of CW2/W-2, as a result of his failure to be selected for promotion. 

On 6 October 1988, the applicant reenlisted in the Regular Army in an enlisted status as a SSG/E-6.  He continuously served in that status until 31 May 1995, when he was released from active duty (REFRAD) for the purpose of retirement. At the time of his REFRAD, he had completed total of 20 years and 5 days of active military service, and he held the rank and pay grade of SSG/E-6.  On the following day, 1 June 1995, he was placed on the Retired List in the rank and pay grade of CW2/W-2, which was the highest rank and pay grade in which he satisfactorily served on active duty.  

While serving on active duty in an enlisted status between 1988 and 1995, the applicant also retained his warrant officer status in the USAR.  A promotion memorandum, dated 23 January 1991, issued by the Total Army Personnel Command (PERSCOM), St. Louis, Missouri, shows that on 10 July 1990, he was promoted to CW3/W-3 in the USAR, while still serving as a SSG/E-6 in the Regular Army on active duty.  The record contains no indication that the applicant ever served on active duty as a CW3/W-3.  

On 18 September 2002, the Army Grade Determination Review Board (AGDRB), at his request, reviewed the applicant’s record and considered him for advancement to CW3/W-3 on the Retired List.  The AGDRB determined that the applicant was not eligible for advancement on the Retirement List to CW3/W-3 because he had never served on active duty in that rank and pay grade.  

Under the provisions of Army Regulations 600-39, the Dual Component Program, which were in effect at the time the applicant served, individuals serving in the Regular Army in an enlisted or warrant officer status were allowed to hold concurrent commissioned officer grades in the USAR.  

However, Title 10 of the United States Code, section 1371 contains the legal authority for assignment of warrant officer retired grades.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a warrant officer retires in the permanent regular or reserve warrant officer grade that he held on the day before the date of his retirement, or in any higher warrant officer grade in which he served on active duty satisfactorily, for a period of more than 30 days.

Title 10, United States Code, section 3964, provides the legal authority for advancement on the Retired List.  It states that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 
30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily.  Rank placement on the Retired List is based solely on the highest rank in which a member satisfactorily served on active duty, USAR service in an inactive status while a member of a dual component program does not satisfy this active duty satisfactory service provision of the law.

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

1.  The Board notes the contention of the applicant that he should have been advanced to the rank and pay grade of CW3/W-3 on the Retired List.  However, it finds insufficient evidence to support this claim. 

2.  By law, advancement on the Retired List is limited to enlisted members and warrant officers of the Army and is only authorized when the member has satisfactorily served on active duty in a higher pay grade.  

3.  The evidence of record reveals that the applicant was placed on the Retired List in the highest warrant officer rank and pay grade he held, and in which he satisfactorily served while on active duty.  Therefore, the Board concludes that he was appropriately placed on the Retired List as a CW2/W-2.  

4.  The record further verifies that the applicant’s promotion to CW3/W-3 was in the USAR and attained while he was serving on active duty in an enlisted status as part of a dual component program.  There is no evidence to show that he ever served on active duty in that rank and pay grade.  Thus, the Board concludes the applicant is not eligible to be advanced on the Retired List based on this USAR promotion to CW3/W-3.

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

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

__JHL__  __MVT__  ___RTD__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002079077	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/17	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.0900	
2.		
3.		
4.		
5.		
6.