RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
		  

	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060001522 


	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. Gerard W. Schwartz

Acting Director

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Larry C. Bergquist

Member

Ms. LaVerne M. Douglas

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to show that he was called to active duty under the Retired Aviators Program in the rank of major.

2.  The applicant states, in effect, that he is currently on active duty as a chief warrant officer two (CW2), serving in the 204th Military Intelligence Battalion at Fort Bliss, Texas.  He continues that his military career includes 12 years of service in the Marines Corps (Active and Reserve) and 5 and 1/2 years of service in the Army National Guard.  He contends that the Army accepted his application for "Voluntary Recall" with the rank of major which later was rescinded and changed to a warrant officer position.

3.  The applicant states that prior to leaving the US Marine Corps, he was selected for promotion to the rank of major and that this promotion was processed prior to his resignation.  The applicant further states that a letter from the Marine Corps shows he left the Marines in the rank of major.

4.  The applicant provides a Marine Corps Reserve Support Center First Endorsement, dated 17 May 1991; a Headquarters United States Marine Corps memorandum, dated 4 November 1994; a Certificate of Retirement, dated 1 December 1996; DA Message R 2151747Z Sep 05; DA Message R 102709Z Oct 04; U.S. Army Human Resources Command, Retiree Recall to Active Duty Program; and 40-pages of electronic mail in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a CW2 aviator and assigned as an aviator with the 204th Military Intelligence Battalion, Fort Bliss, Texas.

2.  The applicant's records show that he served 12 years in the Marine Corps and the Marine Corps Reserve.  

3.  A memorandum from the Marine Corps Reserve Support Center, dated 13 October 1993, shows the applicant's appointment and effective date in the Army National Guard was 17 May 1991.  This memorandum also shows that his rank at that time was major.  

4.  On 17 May 1991, he was commissioned in the Utah Army National Guard (UTARNG) in the rank of CW2.

5.  Headquarters, Utah National Guard Office of the Adjutant General Orders Number 154-092, dated 24 September 1996, retired the applicant effective 30 November 1996 and placed him on the retired list effective 1 December 1996.  These orders also show that his retired grade was major with a date of rank of 7 June 1991.

6.  A memorandum from the U.S. Army Human Resources Command (HRC), dated 18 February 2004, shows that the Chief of Reserve Component Support Service Division from the Office of the Adjutant General did not concur with the applicant being recalled as a major under the Retired Aviators Program.  The Chief of Reserve Component continued that there were no records of the applicant ever being promoted to the rank of major with the application.  The Chief of Reserve Component also did not concur with the applicant being recalled as a captain due to his age.

7.  The Chief of Reserve Component Support Services Division concurred with the guidelines set forth in the DCSPER Message regarding the Limited Call to Active Duty for Retired Aviators and recommended that the applicant be recalled in a retired status as a CW2.

8.  In a memorandum, dated 8 March 2004, the Chief of Warrant Officer Division at HRC, stated that the applicant was fully qualified for active duty as a warrant officer.

9.  U.S. Army Human Resources Command Orders A-04-490837, dated 29 April 2004, recalled the applicant to active duty in the rank of CW2 for a period of 3 years.

10.  On 17 May 2004, the applicant accepted the voluntary recall under the Retired Aviators Program in the rank of chief warrant officer two.

11.  U.S. Army Human Resources Command provided an advisory opinion, dated 21 March 2006, for this case.  The Chief of Accessions, Retirements, and Separations Branch stated the Fiscal Year Retired Aviators Program is a voluntary program which was opened to retired commissioned and warrant officers who were qualified aviators in the ranks of major, chief warrant officer five (CW5), chief warrant four (CW4), or chief warrant three (CW3).

12.  The Chief of Accessions, Retirements, and Separations Branch continued that the applicant applied for and accepted the voluntary recall into active duty as a retired aviator in the rank of CW2 effective 17 May 2004.

13.  The Chief of Accessions, Retirements, and Separations Branch indicated the applicant had numerous communications with the Promotions Branch, the Reappointments Branch, and the Department of the Army (DA) G-1.  The Chief of Accessions, Retirements, and Separations Branch stated the applicant was notified by the Promotions Branch and the Reappointments Branch that neither office was able to help him regarding his pay grade.

14.  The Chief of Accessions, Retirements, and Separations Branch further stated that the only option available to the applicant was contained in Army Regulation 140-10 (Assignments, Attachments, Details and Transfer) which in part, stated the Secretary of the Army must make a finding that the "individual's service is indispensable."  The Chief of Accessions, Retirements, and Separations Branch continued that the DA G-1 stated that it would be a "hard sell" since the Army was "already getting service out of him as a retired aviator."

15.  The Chief of Accessions, Retirements, and Separations Branch recommended granting the applicant's request and provided the following three possible remedies for the applicant's request:

	a.  The DA could deny the applicant's request for relief based that he voluntarily applied for the Call to Active Duty (CAD) program and returned to active duty voluntarily;

	b.  The applicant could voluntarily withdraw from the Retired Aviators Program, apply for reappointment as a major in the United States Army Reserve, and then reapply for the Retired Aviators Program; or

	c.  The Army Board for Correction of Military Records could direct Human Resources Command – Alexandria to promote the applicant to the rank of major effective 17 May 2004, the date he returned to active duty.

16.  The Retired Aviators Program is a voluntary program open to retired commissioned officers and warrant officers who are qualified aviators in the rank of major, CW5, CW4, or CW3.  Applications for active duty are restricted to retired commissioned and warrant officers who retired from active duty service no earlier than 1 October 1997.  Exception to the 1997 previous retirement date will be considered on a case-by-case basis.  The appropriate career division within Human Resources Command will determine the active duty report date and assignment location. 


17.  Officers who are called to active duty under the Retired Aviators Program will incur an active duty service obligation.  Recalled officers will not compete with the current active Army commissioned officer promotion system and their active duty date of rank will not be adjusted.  Additionally, officers will be recalled in their retired grade.  No waivers will be granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank should have been major when he accepted the recall to active duty under the Retired Aviator Program.

2.  Evidence shows the applicant separated from the Marine Corps in the grade of major and was commissioned into the UTARNG in the grade of CW2.

3.  The FY05 Limited Recall to Active Duty Appointment for Retired Major and Warrant Officer Aviators Program provides policy and implementation guidance for recall to active duty.  This policy indicates that the program is available to qualified aviators in the rank of major, CW5, CW4, or CW3.

4.  Evidence shows that at the time of the applicant's retirement from the UTARNG, his grade was a chief warrant officer two with a retired rank of major with a date of rank effective 1 December 1996.

5.  Evidence shows the applicant applied under the Retired Aviators Program; however, did not submit any paperwork showing he was promoted to the grade of major within his military career.  Therefore, the Chief of Reserve Component Support Services Division allowed the applicant to be recalled in the grade of chief warrant officer two. 

6.  However, the Retired Aviators Program is not an available option for officers serving in the rank of CW2.  Evidence of records clearly shows that the applicant was successfully promoted to the rank of major prior to his separation from the US Marine Corps.  Therefore, it would be appropriate in this case to amend the applicant's records to show that he was appointed in the Retired Aviators Program as a major and that he be paid all back pay and allowances due as a result of this correction.






BOARD VOTE:

_LMD___  __LCB___  _TSK___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his records to show that he was recalled to active duty as a member of the Retired Aviators Program in the grade of major and that he be paid all back pay and allowances due as a result of this correction.




__Ted S. Kanamine__
          CHAIRPERSON


INDEX

CASE ID
AR20060001522
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION

REVIEW AUTHORITY

ISSUES         1.  16
102.0200.0000
2.  

3.

4.

5.

6.