IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20070016548 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his US Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve.

2.  The applicant states that he did not request to be discharged and that his discharge was in error.  He also states that as a warrant officer, he was not subject to the non-participation laws.  He concludes that he feels he was not given the proper guidance and has earned the right to be in the Retired Reserve. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Report of Separation from Active Duty), dated 28 March 1979.

	b.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 29 March 1996.

	c.  U.S. Army Reserve Personnel Command (now known as Army Human Resources Command), St. Louis, Missouri (MO), Discharge Orders
D-02-206736, dated 12 February 2002.





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.  With prior enlisted service in the Regular Army and the USAR, the applicant's records show that he completed the warrant officer rotary wing aviation course, and was subsequently appointed as a warrant officer in the Aviation Corps of the USAR and entered active duty on 29 March 1976.  He was promoted to chief warrant officer two (CW2) on 29 March 1978 and was honorably released from active duty and was transferred to the USAR Control Group (Reinforcement) on 28 March 1979.

3.  On 18 April 1979, the applicant submitted an application for Federal recognition in the Maine Army National Guard (MEARNG) and was subsequently extended Federal recognition as a CW2 in the Aviation Corps of the MEARNG on 25 April 1979.  He was promoted to chief warrant officer three (CW3) on 5 December 1986, executed an oath of office as a Reserve commissioned warrant officer in the grade of CW3 on 7 November 1987, and was also promoted to chief warrant officer four (CW4) on 26 February 1993.

4.  On 21 February 1994, the Military Bureau Headquarters of the MEARNG, Augusta, Maine, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

5.  On 29 March 1996, the applicant was separated from the ARNG and was transferred to the USAR Control Group (Reinforcement).

6.  On 12 February 2002, HRC-St. Louis, MO, published Orders D-02-206736, honorably discharging the applicant from the USAR.  The Orders do not state the reason for his discharge; however, the applicant's "Transaction History" in the Human Resources Command Integrated Web Services or IWS contains the entry "[Applicant] was erroneously discharged for nonparticipation in 2002---Warrant Officers are not subject to nonparticipation rules---I will revoke discharge and transfer to Retired Reserve if that is what Soldier wants me to do//sent e-mail and am waiting for his reply.  Soldier replied and requested DD Form 149 be sent so he can begin the process.  Application sent to email address."

7.  The applicant's records do not show that he requested a transfer to the Retired Reserve.

8.  The applicant will reach age 60 on 4 March 2012.

9.  Army Regulation 135-178 (Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers.  Chapter 11 of this regulation specifies that upon expiration of the Soldier's term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the separation authority.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  It also states in pertinent part, that an officer (other than a commissioned WO) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, Individual Ready Reserve (IRR) or Standby Reserve (Active List) and an officer (other than a commissioned WO) or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date, will be removed from active status. 

11.  The Defense Authorization Act for Fiscal Year 1986 amended Title 10 of the United States Code (U.S.C.) to provide that Army Chief Warrant Officers shall be appointed by Commission.  The primary purpose of the legislation was to equalize appointment procedures among the services.  Chief Warrant Officers of the Navy, Marine Corps, and Coast Guard had been commissioned for many years.  The commissioning legislation was a separate Army proposal.  Further clarification of the role of an Army Warrant Officer, including the commissioned aspect, is found in Army Field Manual (FM) 22-100 (Leadership).  Warrant Officers are highly specialized, single-track specialty officers who receive their authority from the Secretary of the Army upon their initial appointment.  However, Title 10 U.S.C. authorizes the commissioning of Warrant Officers (WO1) upon promotion to chief Warrant Officer (CW2).  These commissioned Warrant Officers are direct representatives of the president of the United States.  They derive their authority from the same source as commissioned officers but remain specialists, in contrast to commissioned officers, who are generalists.  Warrant Officers can and do command detachments, units, activities, and vessels as well as lead, coach, train, and counsel subordinates.  As leaders and technical experts, they provide valuable skills, guidance, and expertise to commanders and organizations in their particular field. 

DISCUSSION AND CONCLUSIONS:

1.  Generally, officers and enlisted personnel who have accrued 20 years of qualifying service for retired pay are required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve.  Those who fail to attain 50 points by the anniversary of their retirement year ending date, will be removed from active status.  However, the regulation makes an exception for one category of Soldiers: commissioned warrant officers.  Commissioned warrant officers are not subject to the non-participation rule.   

2.  The evidence of record shows that the applicant was erroneously discharged from the USAR on 11 February 2002 by reason of non-participation for not attaining the required 50 points by the anniversary of his retirement year ending date.  However, the applicant had previously executed an oath of office as a Reserve commissioned warrant officer in the grade of CW3 on 7 November 1987, thus becoming a commissioned warrant officer and exempt from separation for violating the non-participation rule.  Officials at HRC-St. Louis, MO, offered to revoke his discharge orders and transfer him to the Retired Reserve, not retroactively; rather, effective the date he requests such action.

3.  In view of the foregoing evidence, it appears that the applicant meets the eligibility requirements for assignment to the Retired Reserve.  It would now be equitable and just to correct his military records by revoking his discharge order of 12 February 2002, and assigning him to the Retired Reserve effective the same date, with entitlement to retired pay upon his application at age 60.

BOARD VOTE:

__xxx___  __xxx___  __xxx___  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 revoking his 12 February 2002 discharge order from the USAR and showing he was transferred to the Retired Reserve effective 12 February 2002r, with sufficient years of qualifying service for retired pay, upon his application, at age 60.



								XXX
      _______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016548



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ABCMR Record of Proceedings (cont)                                         AR20070016548



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