MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 11 September 2003
                  DOCKET NUMBER: AR2002082568

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. John T. Meixell		Member
Mr. Christopher J. Prosser		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)

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APPLICANT REQUESTS: That his rank and date of rank (DOR) be corrected to show chief warrant officer two (CW2/W-2), effective 10 November 1982, with eligibility to received Reserve Retirement as a CW2.

APPLICANT STATES: That he never received his promotion to CW2 and was informed that it was due to his excess status and/or units failure to submit the appropriate documentation. In support of his application, he submits copies of his: National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); appointment orders; five Officer Evaluation Reports (OERs); and his DA Form 2-1 (Personnel Qualification Record – Part II).

In support of his application, he submits an additional statement. He states that he was initially appointed effective 11 November 1980 and according to regulation at that time he would have been eligible for promotion to CW2. His records indicate that all of his OERs were well above average and there was no record of any adverse personnel action that would delay or deny his promotion.

His unit was reorganized which resulted in his position being eliminated and was placed in an excess status. However, he was approaching 20 years of service and permissions was granted for him to remain in an excess status until he completed 20 years of qualifying service for transfer to the inactive Reserve.

He was informed that his excess status was the reason for his denial for promotion; however, later this year, a former retired service member informed him that this was perhaps untrue.

He completed 11 years of active duty service with two tours in Vietnam and was awarded several awards. He now requests that this Board consider his service, the recorded reason to deny his promotion, and grant his request.

EVIDENCE OF RECORD: The applicant's military records show he enlisted in the Regular Army on 20 August 1965. He continued to serve until honorably discharged on 1 September 1976, in the rank and pay grade of staff sergeant (SSG/E-6). On 2 September 1976, he enlisted in the Kentucky Army National Guard (KYARNG). He continued to serve until honorably discharged on 1 September 1977.

After a break in service, he reenlisted in the KYARNG on 29 July 1978, in the rank and pay grade of SSG/E-6. He continued to serve until he was honorably discharged on 13 November 1980, in order to accept a warrant officer (WO1) appointment. On 14 November 1980, he was appointed as a WO1 in military occupational specialty (MOS) 741A0.



The applicant's records contain several endorsements to the basic letter, Subject: Excess Warrant Officer Due to Reorganization, which is unavailable for review by this Board. The endorsements indicated that the letter was forwarded for: immediate compliance; that the applicant was carried as excess and would be terminated on 31 December 1984, unless granted a waiver; that there were no
available warrant officer vacancies for the applicant in the battalion over the past year; discovered that he had completed over 18 years of service and would complete 20 years on 29 July 1986; and was forwarded for approval. The endorsement also indicated that he be retained in an active status to complete 20 years of qualifying service for retirement purposes and that a vacancy was not anticipated at that time in the KYARNG in his MOS. The Chief, Officer Branch, Army Personnel Division of the National Guard Bureau confirmed the applicant's extension to allow him the opportunity to complete 20 years of creditable service for retirement purposes.

The applicant's records contain a copy of a recommendation for promotion from his supervisor, dated 18 August 1985, which was not signed.

The applicant's records contain a copy of a recommendation for promotion to CW2/W-2, by his commander; however, this document is undated. This recommendation indicated that the applicant was excess and that he had demonstrated his fitness for the responsibilities and duties of the position for which recommended.

The applicant was retained through 29 July 1986 in order to complete 20 years of qualifying service for retirement purposes.

On 3 October 1986, the Kentucky Adjutant General notified the applicant that he had completed the required years of service to be eligible for retired pay at age 60 (20-Year Letter).

On 14 October 1986, the applicant requested transfer to the Retired Reserve.

On 14 October 1986, orders were published separating the applicant from the KYARNG, effective 20 October 1986 and was transferred to the Retired Reserve, in the rank and pay grade of W01/W-1.

The applicant provided five OERs, which he stated, were well above average reports.






National Guard Regulation 600-101 (Warrant Officers-Federal Recognition and Related Personnel Actions) governs policies and procedures for Army National Guard (ARNG) warrant officer personnel management. It states, in pertinent part, that promotions will be accomplished only when an appropriate modified table of organization and equipment (MTOE) or table of distribution and allowances (TDA) position vacancy exist in the unit. It also provided that in order to be qualified for promotion to CW2, an individual must have completed the basic military education requirements and 3 years time in grade (TIG) as a W01.

Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

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 records clearly show that he was appointed on 14 November 1980, in the grade of W01 in the KYARNG.

2. A basic request was prepared on the applicant, Subject: "Excess Warrant Officer Due to Reorganization." However, this document was unavailable for review. Records show the basic letter was endorsed through channels and indicated that the applicant was carried as excess and would be terminated unless granted a waiver. The evidence shows that there were no vacancies for the applicant in the battalion over the past year.

3. The evidence revealed that the applicant had completed over 18 years of service and would complete 20 years on 29 July 1986. Approval was granted to retain the applicant in an active status to complete 20 years of service for retirement purposes.

4. The applicant's records show that his supervisor prepared a recommendation for promotion, that was not signed, and a recommendation from his battalion commander, that was undated. The recommendation indicated that the applicant was excess and that he had demonstrated his fitness for the responsibilities and duties of the position for which recommended.





5. The Board notes the applicant's contention; however, the applicant was clearly informed in writing that he was excess and that a position was not available in his unit. He was afforded the opportunity to be retained to complete time in service for retirement purposes and was transferred to the Retired Reserve after completing 20 years of qualifying service, in the rank and pay grade of W01/W-1.

6. Based on the foregoing and in accordance with regulation, the applicant was not entitled to promotion to CW2 or transfer to the Retired Reserve in the rank of CW2. The evidence contained in the applicant's records show that proper documentation was submitted and complied with.

7. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

8. 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

__sk___ __jm___ ___cp____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082568
SUFFIX
RECON
DATE BOARDED	20030911
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19861020
DISCHARGE AUTHORITY	AR 635-101/ar 140-10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	21
2.
3.
4.
5.
6.