IN THE CASE OF:	  

		BOARD DATE:		  17 JULY 2008

		DOCKET NUMBER:  AR20080008355 


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 he be granted an exception to the existing law and regulation that restricts him to serving 28 years of commissioned service by granting him the authority to serve an additional 8 years of service in order that he may compete for promotion to the rank of colonel and brigade command.  In essence, he is requesting a change to his mandatory release date (MRD).  

2.  The applicant states, in effect, that the law and regulation provides that an officer serving in the rank of lieutenant colonel (LTC) may only serve 28 years of active Federal commissioned service was developed for officers who in the past have followed the Army “Normal” career path to promotion to LTC and who have been passed over for promotion or who are under a form of investigation or just hanging around to retire.  He goes on to state that he believes the law is antiquated and does not apply to his particular situation because a review of his records will show that he did not follow the normal career progression path for advancement or promotion.   

3.  The applicant provides copies of electronic mail (email) traffic between the applicant and the Human Resources Command branch managers, a Statement of Service (DA Form 1506) with supporting documents to document the service on the DA Form 1506. 




CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 7 November 1957 and enlisted in the United States Army Reserve (USAR) on 29 April 1976 for a period of 6 years under the delayed entry program (DEP).  He enlisted in the Regular Army on 25 June 1976 for a period of 4 years under the airborne infantry enlistment and cash enlistment bonus options.     

2.  On 14 January 1981, he was honorably discharged in the rank of sergeant to accept an appointment as a USAR warrant officer. 

3.  On 15 January 1981, he accepted an appointment as a USAR warrant officer one (WO1) rotary wing aviator with a concurrent call to active duty.  He was promoted to the rank of chief warrant officer two (CW2) on 15 January 1984.  On 7 November 1985, he accepted a Regular Army appointment in the rank of CW2. On 24 April 1987, he was commissioned as a Regular Army CW2. On 1 March 1988, he was promoted to the rank of chief warrant officer three (CW3).    

4.  On 5 October 1988, the applicant accepted a USAR appointment as a medical service corps (MSC) second lieutenant with a concurrent call to active duty.  He was promoted to the rank of first lieutenant on 11 October 1990 and accepted a Regular Army appointment on 20 May 1991.  He was promoted to the rank of major on 1 November 1999 and to the rank of lieutenant colonel (LTC) on 1 September 2005.  On 23 June 2007, he was assigned as a commander of an Army Medical Department (AMEDD)  recruiting detachment in Nevada for a       2-year command tour.

5.  A review of the email messages provided by the applicant indicates that in May 2008, the applicant was notified that his MRD had been changed to include all of his warrant officer service and that his MRD had been established as 1 February 2009.  The applicant responded to the effect that he did not believe his warrant officer service should be counted towards his active Federal commissioned service and that he should be allowed to serve until 2012 and that he should be allowed to compete for promotion to the rank of colonel and brigade command.

6.  Officials at the Human Resources Command – Alexandria (HRC-ALEX) responded to the effect that Retirements and Separations Branch would remain firm in upholding the existing rules for calculating 10 years of commissioned service and Total Active Federal Commissioned Service when having both commissioned warrant officer and commissioned officer service without a break in service unless the Board intervened and provided guidance to change existing past precedent. 

7.  Prior to 1985, Title 10, United States Code, section 555 (now section 571, as renumbered and amended by Public Law 102-190, December 5, 1991)(now      10 USC 12241) provided that Reserve warrant officers and chief warrant officers were to be appointed by warrant.  In 1985, the statute was amended effective 8 May 1986, to provide that appointments in the Reserve grade of chief warrant officer (Pay grades CW2 through CW5) are to be made by commission, but that appointments as a Reserve warrant officer (pay grade W01) are still to be made by warrant. The Public Law authorizing this amendment said it was to be effective 6 months from date of enactment. 

8.  Army Regulation 600-8-24, Officer Transfers and Discharges prescribes policies and procedures governing transfer and discharge of Army officer personnel.  Paragraph 6-27 (Rules for Processing Mandatory Retirement due to Maximum Service) provides, in pertinent part, that unless sooner retired, a Regular Army lieutenant colonel (not recommended for promotion) will retire the first day of the month after the month which the officer completes 28 years of active commissioned service.      

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his MRD is improperly computed because it contains his warrant officer service has been noted and found to have partial merit.      

2.  In accordance with the applicable statute, the applicant was not eligible to be commissioned as a warrant officer until he was promoted to the rank of CW2, which appears to be 15 January 1984.  However, at that time warrant officers were not commissioned and it was not until 8 May 1986 that commissioning of warrant officers commenced.  The applicant accepted a Regular Army appointment on 7 November 1985 and was commissioned as a Regular Army CW2 on 24 April 1987.  Therefore, the time spent as a WO1 and CW2  from 15 January 1981 to 23 April 1987 (6 years, 3 months and 8 days) should not be counted for purposes of computation of whether he has 28 years of Active Commissioned Service. 

3.  Therefore, his Active Federal Commissioned service should be computed from 24 April 1987, when he accepted his commission as a Regular Army CW2 and it appears that his actual MRD is 1 May 2015 instead of 1 February 2009. 

4.  Accordingly, it would be in the interest of justice to correct his records to show that his MRD is 1 May 2015 instead of 1 February 2009, as currently reflected in his records.

5.  Additionally, the applicant is authorized to withdraw his application for retirement if he has submitted it based on the change of his MRD.  

6.  In regards to the applicant’s request to extend his MRD for a period of 8 years, the applicant has not submitted sufficient evidence to establish that his service as a commissioned warrant officer should not be counted as commissioned service.  Accordingly, there is no basis to extend his MRD for an additional 8 years.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that his MRD is 1 May 2015 instead of 1 February 2009 and by allowing him to withdraw his retirement application if he has submitted one based on the change to his MRD. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to extending his MRD for 8 years.  




      ___        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)                                         AR20080008355





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ABCMR Record of Proceedings (cont)                                         AR20080008355



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