IN THE CASE OF:	  

		BOARD DATE:	  17 September 2008

		DOCKET NUMBER:  AR20080003351 


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 has requested his Member of Congress' (MOC's) assistance in resolving what he terms as, "an issue with the Army Review Board."  In effect, he requests, through his MOC, reconsideration of his request to have his retired rank and pay grade changed from Chief Warrant Officer Four to Major.  The applicant's MOC has stated that he would appreciate the Board looking into this matter and providing him with a reply that will assist him in addressing the concerns raised by the applicant.

2.  In his letter to his MOC, the applicant states, in effect, that he retired from active duty as a Chief Warrant Officer Four and was informed that he could apply for his highest grade held after 10 years from his retirement date due to the fact that he was serving from September 1989 to July 1997 under Title 32 and not under Title 10.

3.  The applicant states, in effect, that the Army Review Board stated in their consideration of evidence in his case that under Title 10, US Code 1552(b) the application for correction of military record must be filed within three years.  He adds that he wasn't under Title 10 but under Title 32 and had to wait for 10 years upon retiring from active duty.  To clarify, he adds, in effect, that he served as a Major on active duty from May 1993 (sic:  May 1973) to October 1993 (sic:  October 1973), one week short of the required 6 months in grade.  After his release from active duty, he rejoined the Washington Army National Guard (WAARNG), in November 1993 (sic:  November 1973).  In January 1975, he transferred to the USAR (Ready Reserve Control Group) and was promoted to Major on 1 February 1975.  On 14 January 1976, he accepted an appointment in the rank and pay grade Chief Warrant Officer Two (CW2/W-2) and reentered the WAARNG.  In September 1989, he was ordered to full time National Guard duty (AGR), Title 32 and retired on 31 July 1997.

4.  In support of his request for his MOC's assistance, which was accepted as a request for reconsideration, the applicant provided a copy of his originally submitted request (DD Form 149, Application for Correction of Military Record) with a copy of a 15 April 1975 letter prepared and distributed by the Office of the Adjutant General, US Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, Subject:  Promotion as a Reserve Commissioned Officer of the Army under Title 10 of the United States Code (AR 135-155); a copy of Special Orders Number 88, reproduced at Headquarters, US Army Transportation Center and Fort Eustis, Fort Eustis, Virginia on 7 May 1973; and a copy of the Record of Proceedings that resulted from consideration of his original request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records, which were summarized, in a previous consideration of the applicant's case by the Army Board for the Correction of Military Records in Docket Number AR20070010893 on 8 January 2008.

2.  The evidence shows that the applicant was appointed a second lieutenant in the ARNG on 1 July 1963.  He entered active duty on 16 March 1964.

3.  On 7 May 1973, the applicant was promoted to the rank and pay grade of Major, O-4, in the Army of the United States (AUS), by Special Orders Number 88 which were reproduced at Headquarters, US Army Transportation Center and Fort Eustis, on 7 May 1973.

4.  The applicant's DD Form 214 shows that he was honorably released from active duty on 31 October 1973, in accordance with Army Regulation (AR) 635-100, paragraph 3-58b, section XV, due to a reduction in strength.  At the time of the applicant's release from active duty, he had served in the rank and pay grade of Major, O-4, for a total of 5 months and 25 days.

5.  On 30 January 1975, Headquarters Military Department, State of Washington, Office of the Adjutant General, Camp Murray, Tacoma, Washington, published Special Orders Number 26 separating the applicant from the WAARNG in the rank and pay grade of Captain, O-3.  The reason cited for his separation in these orders was, "To accept promotion to higher temporary grade served while on active duty (grade of Major)."
6.  On 15 April 1975, the Office of the Adjutant General, US Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, prepared and distributed a letter, Subject:  Promotion as a Reserve Commissioned Officer of the Army under Title 10 of the United States Code (AR 135-155).  The applicant was promoted to the rank and pay grade of Major, O-4, with a date of rank of 1 November 1973 and an effective date of promotion of 1 February 1975.

7.  Title 10, US Code, Section 1370(a)(1) states, "Unless entitled to a higher grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than Chapter 61 or Chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant contends he should have his retired rank changed from Chief Warrant Officer Four to Major.  The applicant also contends that he did not miss the time frame that was stated in the original request due to the fact he was not under Title 10.

3.  The applicant's contention that the Board stated in their consideration that 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 an alleged error or injustice is correct; however, this is not the issue in this case.  The issue is the applicant's advancement on the retired list to the highest rank and pay grade he held while 
he served on active duty.  As can be seen in the Record of Proceedings, while it appeared that the applicant did not file his application with this Board within the 
time frame provided in the statute of limitations, the Board elected to conduct a substantive review of this case; thus, the statute of limitations was waived and the applicant was not penalized in any way.

4.  Considering the real issue in this case – the applicant's advancement on the retired list to Major, O-4, the evidence shows that the applicant served in the rank and pay grade of Major, O-4, for only 5 months and 25 days, short of the required six months, before he was honorably released from active duty.  Even though, from all indications, he served satisfactorily on active duty in the rank and pay grade of Major, O-4, he did not satisfy the minimum time in grade requirement to retire in that higher rank and pay grade.

5.  The highest rank and pay grade the applicant served in satisfactorily, to include the minimum time in grade requirements (more than six months), to be advanced to that rank and pay grade on the retired list as a commissioned officer, was that of Captain, O-3.  If the applicant were to be advanced to this rank and pay grade, he would sustain a loss in retired pay.  Since the applicant was very specific in his request, that he was requesting advancement to the highest rank and pay grade that he held, that of Major, O-4, advancement to the rank and pay grade, Captain, O-3, was not considered by the Board; however, if the applicant wishes consideration for advancement to the rank and pay grade of Captain, O-3, he may resubmit an application to the Board and request such.

6.  Based on the evidence and the applicable statute, the applicant is not entitled to be advance on the retired list to the rank and pay grade of Major, O-4, on the retired list, because he did not serve on active duty in this rank and pay grade for six months or longer as required by the applicable statute.

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 AR20070010893 dated 8 January 2008.



      __________x___________
               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)                                         AR20080003351



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080003351



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1