RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20060017825 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Rial D. Coleman

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Lester Echols

Member

Mr. Jeffrey C. Redmann

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 correction of his records to show that he retired as a CW5 (chief warrant officer five/pay grade W-5).

2.  The applicant states, in effect, that he was granted a waiver for the two-year active duty service obligation typically incurred for accepting promotion to the rank of CW5, therefore, he should be retired as such.  He also states that had he been informed of the disapproval of his waiver request, he could have reconsidered and/or pursued other options.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), memorandum requesting to retire, memorandum requesting waiver of active duty service obligation, endorsement of his request for retirement, the fiscal year 2005 CW5 promotion selection list, and his retirement orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Army on 22 July 1981.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 63W (Wheeled Vehicle Repairer).  The applicant progressed to the rank of staff sergeant/pay grade E-6 in the enlisted ranks.  On 22 June 1988, he was discharged under honorable conditions for the purpose of accepting an active duty appointment as a warrant officer.

2.  The applicant's record shows that he reentered active duty as a warrant officer on 23 June 1988.  Upon completion of the warrant officer basic course, he was awarded the military occupational specialty of 630A (Automotive 
Technician), which was subsequently converted to 915A (Unit Maintenance Technician) and ultimately to 915E (Senior Automotive Maintenance Officer).  The highest rank the applicant attained while serving on active duty was CW4 (chief warrant officer four/pay grade W-4).

3.  Records show that the applicant's final active duty assignment was as Chief of the Warrant Officer Logistic Branch at the United States Army Human Resources Command.

4.  Department of the Army, United States Army Garrison, Fort Belvoir Retirement Orders Number 319-0004, dated 15 November 2005 were issued to the applicant.  The Retired grade/Date of rank portion of the orders shows: CW4/1 April 2001. 

5.  Item 4a (Grade, Rate, or Rank) of the applicant's DD Form 214 shows his retired rank as CW4. 

6.  Item 4b (Pay Grade) of the applicant's DD Form 214 shows his retired grade as W-4 (warrant officer four).

7.  Item 12h (Effective date of Pay Grade) of the applicant's DD Form 214 shows 2001/04/01 [1 April 2001].

8.  The applicant's record shows that he was promoted to the grade of rank CW4 with an effective date and date of rank of 1 April 2001.

9.  The Chief Warrant Officer Five, selection board results for fiscal year 2005 show that the applicant was selected for promotion to the rank of chief warrant officer five and assigned a sequence number of 30 in the Technical branch category.  These board results were released to the public on 8 September 2005. 

10.  In a memorandum addressed to United States Army Human Resources Command Retirements and Separations Branch, dated 12 October 2005, subject Voluntary Retirement CW4(P) [applicant's name & social security number omitted], the applicant requested voluntary retirement to be effective 30 September 2006.  In item 11 of his request, the applicant stated, "…I believe I am authorized to retire in the grade of W-5, I understand that final determination of my retired grade will be made by HQDA and that I will be informed if I am not entitled to retire in the grade I have specified in this paragraph."  There is no mention of an active duty service obligation waiver in this document. 

11.  In a memorandum addressed to United States Army Human Resources Command Retirements and Separations Branch, dated 12 October 2005, subject Voluntary Retirement CW4 (P) [applicant's name & social security number omitted], the Warrant Officer Division Chief recommended approval of the applicant's request for voluntary retirement. 

12.  In a memorandum addressed to United States Army Human Resources Command Retirements and Separations Branch, dated 12 October 2005, subject Request for Waiver of Promotion Active Duty Service Obligation, the applicant, in effect, requested a sixteen month waiver of his promotion active duty service obligation in accordance with the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 6-1e and 6-16a for compassionate reasons. 

13.  Paragraph 6-1e of Army Regulation 600-8-24 (in effect at the time) states in pertinent part that, "Generally, 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 or she held on the day before retirement or in the higher warrant officer grade, if any, in which he or she served on active duty satisfactorily, as determined by the Secretary of the Army, for a period of more than 30 days (10 USC 1371)."

14.  Paragraph 6-16a of Army Regulation 600-8-24 (in effect at the time) states in pertinent part that, "Generally, an officer who completes certain formal education or training programs accepts career status, a certain promotion, or a PCS incurs an active duty service obligation (Army Regulation 350-100).  Normally, an officer must be able to fulfill the active duty service obligation on or before the effective date of retirement.  However, the Commanding General of Human Resources Command may grant nonstatutory waivers.  Each request will be on a case by case basis."

15.  Paragraph 2-5 (Promotion) of Army Regulation 350-100 (Officer Active Duty Service Obligations) states in pertinent part that a warrant officer who accepts a promotion to the grade of CW3, CW4, or CW5, incurs a two year active duty service obligation.  This active duty service obligation begins on the date of promotion and must be served before voluntary retirement.

16.  Paragraph 1-19 (Nonpromotable Status) of Army Regulation 600-8-29 (Officer Promotions) states in pertinent part that, a warrant officer whose voluntary retirement application has been approved by Army Human Resources Command is in a nonpromotable status.  Paragraph 5-5h of the same regulation states, a warrant officer who has a voluntary retirement application approved by the Army Human Resources Command is in a nonpromotable status and does not have to decline promotion.

17.  Department of the Army Selection Order Number 018-026 promoted all promotion eligible CW4s whose sequence numbers had come up (Aviation branch through sequence number 26 and Technical branch through sequence number 31) to the rank of CW5 with effective date of 1 February 2006.  The applicant's name does not appear on the promotion order. 

18.  Incorporated herein by reference is a staff advisory opinion from the Chief of Retirements and Separations Branch of the United States Army Human Resources Command, dated 20 June 2007.  The staff advisory opinion stated, in effect:

	a.  The applicant's memorandum requesting a waiver of his active duty service obligation was not received along with his initial retirement request which was approved for him to retire as CW4.

	b.  Although Title 10, Section 1371 provides for a warrant officer to retire in a higher grade when he has served on active duty satisfactorily, Army Regulations prescribe a two-year active duty service obligation for promotion to the ranks of CW3, CW4, or CW5 that must be fulfilled prior to voluntary retirement.

	c.  The opinion also mentions that although the Commanding General of Human Resources Command is authorized to grant nonstatutory waivers for hardship when it is in the best interest of the Army and the waiver is for a period of less than one year, he has delegated disapproval authority down to Chief of the Retirements and Separations Branch provided both he and the chief of the respective career branch both concur, which occurred in this respective case.

	d.  The applicant signed a note acknowledging the disapproval of his waiver request and indicating his intent to continue with retirement as a CW4.

	e.  The applicant was notified of the subsequent approval of his retirement in the lower grade by his respective retirement orders and DD Form 214 which clearly show his retired grade as a CW4.

19.  On 20 June 2007, the applicant was provided a copy of the advisory opinion from the Separations Branch of the United States Army Human Resources Command in order to have an opportunity to respond to its contents.

20.  On 24 July 2007, the applicant rebutted the Human Resources Command advisory opinion.  The applicant, in effect, acknowledged the fact that his retirement grade of rank was entered as CW4 on both his retirement orders and his DD Form 214. However, he continued to dispute the correctness of the retirement grade based upon his contention that he never received notification of disapproval of any portion of his request to retire as a CW5.   


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show that he retired as a CW5 was carefully considered.  However, there is insufficient evidence to support his claim.

2.  The applicant's final active duty assignment was as Chief of the Warrant Officer Logistic Branch at the United States Army Human Resources Command. In this capacity, a portion of his duties was to personally review every retirement application from his supported population requiring any type of waiver and render a staff recommendation.  This responsibility required being familiar with all of the statutes, policies, and practices pertaining to active duty service obligations and promotion eligibility.  Therefore, it is likely that he was aware of both the regulatory service obligation and his nonpromotable status once his retirement was approved at the grade of rank of CW4.

3.  The applicant was never promoted to the rank of CW5 by the Department of the Army, therefore he never served as a CW5 on active duty.  Had he been promoted to CW5, he would have been subject to the two-year active duty service obligation.

4.  The governing statute and Army Regulation state, in pertinent parts, 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 or she held on the day before retirement or in the higher warrant officer grade, if any, in which he or she served on active duty satisfactorily, as determined by the Secretary of the Army, for a period of more than 30 days.

5.  The applicant's memorandum requesting to retire was endorsed by his supervisor, but the memorandum requesting a waiver was not.  This supports the Human Resource Commands' allegation that the request for waiver did not accompany the initial request for retirement.

6.  In his retirement request, the applicant acknowledged the fact that a final determination of his retired grade would be made by HQDA.

7.  In a handwritten note, the applicant acknowledged disapproval of his request for a waiver and indicated his intent to proceed with his previously approved retirement at the grade of rank of CW4.

8.  The applicant was issued retirement orders and signed a DD Form 214 which both clearly indicated his retirement grade of rank as CW4 and he did not dispute either in writing at the time of receipt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEA  __  __LE ___  __JCR __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





_____James E. Anderholm ____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.