RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060014902 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Yolanda Maldonado

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Gerald J. Purcell

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, advancement on the Retired list to the rank Chief Warrant Officer Three (CW3)/pay grade W-3.

2.  The applicant states, in effect, that he completed 21 years of active service, retired from the Army in the rank of Chief Warrant Officer Two (CW2)/pay grade W-2 on 30 September 1980, and his active service plus his service on the Retired list now totals more than 30 years.  He also states, in effect, he was promoted to CW3 (W-3), but declined the promotion due to his impending retirement.  The applicant further states, in effect, that after reading Title 10, U.S. Code (USC), Section 3964, he is wondering if he is eligible for advancement on the Retired list to CW3 (W-3).

3.  The applicant provides a self-authored statement, dated 5 January 2006, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 30 September 1980.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 September 1980, the date he retired from active duty.  The application submitted in this case is dated 11 October 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military service records show he enlisted in the U.S. Army on 2 October 1959 and, upon completion of advanced individual training, was awarded military occupational specialty (MOS) 631 (Wheeled Vehicle Mechanic). He continuously served in an enlisted status until being honorably discharged on 29 April 1973 in the rank of Sergeant First Class (SFC)/pay grade E-7.

4.  The applicant's military service records show that on 30 April 1973 he was appointed a warrant officer in the U.S. Army Reserve (USAR), in MOS 630A (Automotive Maintenance Technician), with concurrent call to active duty.  The applicant continuously served on active duty as a warrant officer until being honorably retired from active duty on 30 September 1980 in the rank of CW2/
W-2.  At the time, the applicant had completed a total of 20 years, 11 months, and 29 days active service.  

5.  The applicant’s DA Form 2-1 (Personnel Qualification Record), Item 18 (Appointments and Reductions), shows that he was promoted to the grade of CW2 in the Army of the United States (AUS) with a date of rank (DOR) and effective date of 30 April 1975.  This item also shows he was promoted to CW2 in the USAR with a DOR of 29 April 1976, effective 26 May 1976.

6.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Military Personnel Center, Alexandria, Virginia, Orders 121-4, dated 15 July 1980, which show, in pertinent part, that the applicant was promoted to the grade of rank of CW3 (W-3), with a DOR of 2 July 1980, effective 1 August 1980.  These orders also contain, in pertinent part, the statement "[p]romotion is not valid and it will be revoked if the officer concerned is not in a promotable status on the effective date of promotion.  The authority for this promotion is section 3449, Title 10, United States Code."

7.  The applicant's military service records contain a copy of Headquarters,
1st Battalion, 321st Field Artillery, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, memorandum, dated 27 July 1980, subject: Promotion Refusal.  This document shows, in pertinent part, that the applicant declined the promotion to CW3 (W-3) and indicated he would retire as of 30 September 1980. This document also shows that the applicant authenticated this statement by placing his signature on the document.

8.  The applicant's military service records contain a copy of Headquarters,
1st Battalion, 321st Field Artillery, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, 1st Indorsement to the memorandum, dated 27 July 1980, subject: Promotion Refusal, which states, in pertinent part, that "CW2 S____ has officially and finally rejected the promotion and finalized his retirement plans as of 27 July [1980].  Any promotion orders or actions on him should be revoked as he will retire as of 30 September 1980."  This document was signed for the battalion commander by the second lieutenant serving as the adjutant of the battalion.

9.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Military Personnel Center, Alexandria, Virginia, Orders S130-15, dated 3 July 1980.  These orders show, in pertinent part, the applicant was retired from active duty on 30 September 1980 and placed on the Retired list in the grade of CW2 (W-2), effective 1 October 1980.
10.  The applicant’s DD Form 214 shows he was honorably retired from active duty on 30 September 1980.  Item 4a (Grade, Rate or Rank) and Item 4b (Pay Grade) show he held the rank and pay grade of CW2/W-2 on the date he was retired from active duty.  Item 12 (Record of Service), block h (Effective Date of Pay Grade) contains the entry, "75 04 30" (i.e., 30 April 1975).

11.  Title 10 of the United States Code, Section 3449, provides that temporary promotion in warrant officer grades be governed by such regulations as the Secretary of the Army prescribes.

12.  Title 10 of the United States Code, Section 1371, provides that unless entitled to a higher retired grade under some other provision of law, a warrant officer retires, as determined by the Secretary of the Army, in the permanent regular or reserve warrant officer grade, if any, that he held on the date of his retirement, or in any higher warrant officer grade in which he served on active duty satisfactorily, as determined by the Secretary of the Army, for a period of more than 30 days.

13.  Army Regulation 635-100 (Personnel Separations - Officer Personnel), in effect at the time the applicant retired from active duty, provided  the authority for the separation of commissioned and warrant officers from the Active Army.  Chapter 4 (Retirement), paragraph 4-31 (Retired grade), provided, 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, if any, that he held on the day before the date of the retirement, or in any higher warrant officer grade he served on active duty satisfactorily, for at least
31 days, as determined by the Secretary of the Army (Title 10, USC, Section 1371).

14.  Army Regulation 635-5 (Separations Documents) prescribes the preparation guidelines for the DD Form 214.  It states in pertinent part that Item 4a (Grade, Rate or Rank) and Item 4b (Pay Grade) will reflect the active duty grade or rank and pay grade (respectively) at time of separation.

15.  Title 10 of the United States Code, Section 3964, provides the legal authority for advancement of warrant officers and enlisted members on the Retired list.  It states, in pertinent part, that warrant officers and enlisted members of the Army are entitled, when their active service plus their service on the Retired list totals
30 years, to be advanced on the Retired list to the highest grade in which they served on active duty satisfactorily.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should be advanced on the Retired list to the grade as CW3 (W-3) because he believes that to be the highest grade in which he served on active duty satisfactorily and his active service plus his service on the Retired list now totals more than 30 years.  The applicant's request was carefully considered; however, there is an insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record shows that the applicant declined promotion to the grade of CW3 (W-3) in order to retire from active duty on 30 September 1980.  Moreover, the evidence of record shows that the applicant officially declined promotion to the grade of CW3 (W-3) on 27 July 1980, prior to the effective date of his scheduled promotion (i.e., 1 August 1980).  In addition, there is no evidence of record, and the applicant fails to provide sufficient documentary evidence, that shows he accepted and was promoted to the grade of CW3 (W-3) while serving on active duty, and/or that he served on active duty in the grade of CW3 (W-3) for a period of more than 30 days.

3.  The evidence of record shows that the applicant completed 20 years,
11 months, and 29 days of total active service at the time of his retirement on
30 September 1980.  The evidence of record also shows that the applicant was serving in the grade of CW2 (W-2) and that he served on active duty satisfactorily in that grade for a period of more than 30 days.

4.  By regulation, the rank and pay grade held on the date of separation from active duty will be entered in Item 4a and Item 4b of the DD Form 214.  The evidence of record confirms the applicant held the rank and pay grade of CW2/W-2 on the date he retired from active duty.  Thus, there is no error with respect to the entries in Item 4a, Item 4b, or Item 12h of his DD Form 214.  Therefore, the retired grade in which the applicant was placed on the Retired list is correct.

5.  The evidence of record shows that the applicant's active duty service plus time on the Retired list equaled 30 years on 2 October 1989.  There is no evidence of record showing that the applicant was promoted to the grade of CW3 (W-3) and served on active duty satisfactorily in the grade of CW3 (W-3) for a period of more than 30 days. Therefore, the applicant is not entitled to advancement to CW3 (W-3) on the Retired list.


6.  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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 September 1983.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___YM___  ___LMD_  ___GJP _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




___Yolanda Maldonado____
          CHAIRPERSON



INDEX

CASE ID
AR20060014902
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/15
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19800930
DISCHARGE AUTHORITY
10 USC 3911
DISCHARGE REASON
Required Service for Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
129.0400.0000
2.

3.

4.

5.

6.