RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	14 November 2007  
	DOCKET NUMBER:  AR20070009458 


	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.


x

	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, by and through his attorney, in effect, reconsideration of the decision reached by the Board in Docket Number 20050013423, on 25 May 2006.

2.  The applicant states, in effect, in his electronically filed application for reconsideration, that new documentary and legal evidence shows that the Board wrongly denied his request to enforce the terms of the retiree recall recruiting agreement after accepting him for reentry on active duty.  He contends that the Army had an obligation to place him on the active duty list (ADL) as a Regular Army (RA) warrant officer and to include his entitlement to RA integration, officer evaluation reports (OERs), promotion eligibility, and with reconsideration for promotion by special selection boards.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, on behalf of his client, in effect, that the Army Board for the Correction of Military Records (ABCMR) reconsider its decision and grant the applicant the relief he requests.

2.  Counsel states, in effect, that his client should be granted the following relief based upon new evidence:

	a.  enforcement of the terms of the applicant's recall recruiting agreement that he would be placed on the ADL as a RA warrant officer; and 

	b.  retroactively reinstate the applicant as a current retired warrant officer on active duty on the ADL effective 1 August 2001, with all rights and privileges for RA retention, including but not limited to:

(1)  promotion consideration and special board reconsideration on the warrant officer ADL under 10 USC 620 and 574; 

(2) Official Military Personnel File (OMPF) filed OERs – rating chains should complete all aspects of OER/NCOER system to facilitate communication and feedback; and 

(3) the expungement or transfer to the restricted OMPF of all documents relating to his recall to active duty, non-promotable status, and reinstatement. 

3.  In support of his request for reconsideration, counsel provides, on behalf of the applicant, a 16-paged supplemental statement and Exhibits marked OE (Original Exhibits) 1 through 5 and RE (Reconsideration Exhibits) 1 through 9.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR, in Docket Number AR20050013423, on 25 May 2006.

2.  The evidence shows the applicant entered active duty in the RA, after having served in the Navy, in an enlisted status, from 28 May 1975 through 10 September 1981.  He enlisted in the RA on 11 September 1981 and was honorably discharged on 16 August 1982 for the purpose of accepting an appointment as an aviation warrant officer.  The applicant served honorably until he was separated, in the rank and pay grade, CWO, W3 (Chief Warrant Officer Three), for the purpose of retirement, after completing 20 years and 3 days total active Federal service, on 31 May 1995.

3.  The applicant was recalled to active duty from a retired status in accordance with HQDA DAPE-MPO and TAPC-OPD-C, Unclassified Message, Subject:  Limited Recall to Active Duty Appointments for Retired Aviators Program.  The message provided policy and implementation guidance for the recall to active duty available to retired commissioned and warrant officers who were qualified aviators in certain ranks and warrant officers who held certain military occupational specialties.  Application for active duty was required and was restricted to retired commissioned and warrant officers who retired from active duty service no earlier than 1 October 1995.

4.  The evidence shows the applicant was accepted for re-entry on active duty, based on his application, on 31 July 2001, for a period of 14 months, in the permanent grade of CWO, W3, with a date of rank of 1 August 1990.  The evidence shows the applicant entered active duty on 28 July 2001.  Early reporting was authorized.

5.  Paragraph 4.D. of the unclassified message referred to in paragraph 3 above specifically states, in effect, those individuals who applied for recall under the provisions of this message would not be eligible for promotion.

6.  As indicated in paragraphs 10 and 11, in the Consideration of Evidence section of the ABCMR Record of Proceedings, an advisory opinion was obtained from Headquarters, US Army Human Resources Command, and more specifically, from the Chief, Accessions, Retirements, and Separations Branch, Officer Personnel Directorate.  On 17 November 2005, this official provided the ABCMR a Memorandum, Subject:  Army Board for the Correction of Military Records (ABCMR) Advisory Opinion, [the applicant], and stated, that the applicant had been recalled to active duty specifically in response to the Limited Recall to Active Duty Appointment for Retired Aviators Program.  He further stated, in his advisory opinion that under the provisions of Title 10, Section 574 (a) and Section 582, paragraph 2, retired warrant officers who were recalled to active duty were not eligible for selection for promotion.  This official, based on the contents of Title 10, could not recommend correction of his records, in effect, that the applicant's application be approved.

7.  Title 10, Section 582 lists exclusions of those warrant officers on the active duty list who are not subject to Title 10, Chapter 33A.  The exclusions include retired warrant officers on active duty (other than retired warrant officers who were recalled to active duty before 1 February 1992 and who have served continuously on active duty since that date.)

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant specifically responded to, and applied for a recall to active duty according to the provisions and criteria set forth in HQDA DAPE-MPO and TAPC-OPD-C, Unclassified Message, Subject:  Limited Recall to Active Duty Appointment for Retired Aviators Program.

2.  Included in the text of the message which announced the retiree recall program was a paragraph, paragraph 4.D., which specifically states, those individuals who applied for recall under its criteria and provisions would not be eligible for promotion.

3.  The applicant applied for recall to active duty from his retired status and in so doing, accepted the announced provisions for service as a retired Army warrant officer on active duty.

4.  There is no evidence the announced policy or implementing guidance for the program under which he was accepted for Army service was amended or modified to allow for the promotion of warrant officers who were recalled to active duty from their retired status.

5.  Based on the evidence, the applicant is not eligible for a correction to the decision reached by the Board in Docket Number AR20050013423 on 25 May 2006.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x __  _x_____  ___x_  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 to amend the decision of the ABCMR set forth in Docket Number AR20050013423, dated 25 May 2006.




_____x____
          CHAIRPERSON



INDEX

CASE ID
ARw20070009458
SUFFIX

RECON

DATE BOARDED
20071114
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.0000
2.
131.1100
3.
134.0000
4.

5.

6.