RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 April 2008
      DOCKET NUMBER:  AR20070014910


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Ms. Larry W. Racster              |     |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 record be corrected by
voiding
his involuntary separation with separation pay and showing that he was
instead retired under the Temporary Early Retirement Authority (TERA)
provisions provided in Title 10 of the United States Code, Section 1174 (10
USC 1174); and that he be provided appropriate pay and allowances due as a
result.

2.  The applicant states, in effect, he believes that his separation was
both in error and unjust, and that according to laws implemented to assist
during the active force drawdown period, which are applicable to his
separation in 1999, as a warrant officer, he was qualified for retirement
under the TERA provisions of the law.  He states that he had 16 years plus
of active service at the time of his separation, which would have made him
eligible to receive early retirement benefits under the TERA.  He claims
Army policy at the time of his separation allowed for his retirement under
the TERA provisions based on his two-time
non-selection for promotion, but he was never offered this option.  He
further claims that he received $40,533.73 of separation pay after taxes,
and was granted a 10 percent disability rating by the Department of
Veterans Affairs (VA) at the time of his separation that was increased to
30 percent in 2005; however, he has never received compensation from the VA
and will not receive any until his separation pay is recouped.

3.  The applicant provides the 12 documents identified in the attachments
list he provides with his application in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty, in an enlisted status, on 10 July 1980.  He served on
active duty in that status for 2 years, 11 months, and 24 days until 8 July
1983, at which time he was honorably released from active duty (REFRAD) and
transferred to the United States Army Reserve (USAR) Control Group
(Reinforcement) to complete his military service obligation, at the
expiration of his term of service (ETS).

3.  On 18 November 1985, the applicant enlisted and entered active duty in
the United States Air Force (USAF), in an enlisted status.  He continued to
serve in this status for 3 years, 1 month, and 18 days, until being
honorably discharged on 5 January 1989, for the purpose of entering an
officer training program in another service.

4.  On 16 January 1990, the applicant was appointed a Warrant Officer One
(WO1) in the USAR and entered active duty in that status on 25 January
1990.  On 11 January 1992, the applicant was promoted to Chief Warrant
Officer Two (CW2).

5.  On 25 September 1998, the United States Army Personnel Command
(PERSCOM), now known as the United States Army Human Resources Command
(HRC), informed the applicant that he had been considered but not selected
for promotion to Chief Warrant Officer Three (CW3).  Based on the applicant
having been twice non-selected for promotion to CW3, he was notified that
he would be required to be REFRAD not later than 1 February 1999, with
entitlement to separation pay if he were eligible for such pay.  An
Involuntary Separation Information Paper and an Option Statement were
provided to the applicant with this HRC notification.  The information
paper and option statement contained no information regarding retirement
under the TERA provisions of the law.

6.  On 28 October 1998, the applicant completed and returned the Option
Statement, in which he indicated that he desired to retain his USAR
commission and be REFRAD.  There was no option for him to elect early
retirement under the TERA provisions of the law.

7.  On 1 February 1999, the applicant was honorably REFRAD and transferred
to the USAR Control Group under the provisions of Paragraph 2-41, Army
Regulation 600-8-24, in the rank of CW2.  The separation document (DD Form
214) he was issued shows he completed a total of 16 years, 2 months, and
13 days of active military service and 3 years and 1 month of prior
inactive military service.  Item 18 (Remarks) shows he received separation
pay in the amount of $56,296.86.
8.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes
the Army's active duty officer and warrant officer separation policy.
Chapter 2 contains the rules for processing involuntary release from active
duty due to failure of selection for permanent promotion.  It states, in
pertinent part, that a USAR warrant officers serving on active duty who
fail a second time to be selected for promotion to the permanent grade of
CW3 will be discharged on the 120th calendar day after receipt of
involuntary release notification, unless earlier release is voluntarily
requested or transfer to the Retired Reserve is requested and the Solder is
eligible.  It further stipulates that officers and warrant officers with a
remaining service obligation will be transferred to the Ready Reserve.

9.  Title 10 of the United States Code, Section 1293 provides the legal
authority for the retirement of warrant officers with twenty to thirty
years of service.  It states that the Secretary concerned may, upon the
warrant officer's request, retire a warrant officer of any Armed Force
under his jurisdiction who has at least 20 years of active service.

10.  Public Law 102-484 provided the Secretary of the Army TERA during the
active force drawdown period by authorizing the application of the 10 USC
1293 to warrant officers who had completed at least 15 but less than 20
years of service.  TERA was in effect during the active force drawdown
period beginning in October 1992 and ending on 31 December 2001.  Army TERA
policy implemented as a result of this TERA authority stipulated that
officers and warrant officers facing involuntary separation did not qualify
for retirement under the TERA provisions.  While the policy allowed warrant
officers who were 1 time non-selects for promotion to request retirement
under the TERA provisions, there were no such policy provisions applicable
to warrant officers who were not selected for promotion twice and who were
facing involuntary separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was erroneously separated with
separation pay and should have been retired under the TERA provisions in
effect at the time was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The Army TERA policy in effect at the time of the applicant's
separation did not provide for allowing warrant officers who were twice not
selected for promotion and who faced involuntary separation under the
governing regulation to retire early under the TERA provisions.  In this
case, the evidence of record confirms the applicant was twice not selected
for promotion to CW3, and that he was properly processed with entitlement
to separation pay under the applicable law and regulation.
3.  The applicant's DD Form 214 accurately reflects his completion of 16
years,
2 months and 13 days of active duty military service.  It also shows that
he was entitled to separation pay in the amount of $56,296.86.  Given his
active duty service was properly documented in the DD Form 214, there is no
reason to believe his separation pay was improperly calculated.

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LE___  __JRS __  __LWR  _  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.




                                  _____Lester Echols______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070014910                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/03/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1999/02/01                              |
|DISCHARGE AUTHORITY     |AR 600-8-4                              |
|DISCHARGE REASON        |2XNon-Select                            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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