IN THE CASE OF:	  

		BOARD DATE:	       13 August 2008

		DOCKET NUMBER:  AR20080008730 


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 reinstatement in the Army as a warrant officer effective the date of his unlawful discharge; all due back pay and allowances and promotions that would flow from his reinstatement; retirement as a warrant officer effective around October 2000, with all due benefits to include a military identification card and retired pay that would flow from his retirement.  

2.  The applicant requests, in the alternative, that his re-issued DD Form             214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank and grade as Sergeant, E-5.

3.  The applicant states that he was selected for appointment to warrant officer and such advancement was never formally withdrawn by the Army.  Accordingly, he is entitled to advancement and promotions in the Warrant Officer Corps.  

4.  The applicant states that ordinarily, “[b]ecause no one has a right to enlist or reenlist in the armed forces unless specially granted one, an enlisted serviceman who has been improperly discharged is entitled to recover pay and allowances only to the date on which his term of enlistment would otherwise have expired had he not been discharged.”  However, if plaintiff was improperly released from active duty, his statutory right to pay was not extinguished and he would be entitled to back pay and allowances which continue through the date of correction.  He cited “Tippett v. United States, 185 F.3d at 1255”; and “Adkins v. United States, 68 F.3d 1317,1321 (Fed. Cir. 1995), reh’g denied (1996).”

5.  The applicant states that when the plaintiff is a military officer, as in his case where he was appointed as a warrant officer, then the only action the Army Board for Correction of Military Records (ABCMR) can take is to reinstate him to the Army constructively; promote him; provide all back pay and allowances that would ordinarily flow from that reinstatement; and permit him retirement at the highest grade held.  There is no doubt that his discharge was both involuntary and improper, as the Army Discharge Review Board (ADRB) and the ABCMR have already concluded this.  Given that the applicant was selected for “promotion” to warrant officer and had military orders issued to him reflecting this “promotion,” and because the ADRB and the ABCMR found in his favor, the ABCMR must reinstate him to the Army and provide promotions and all back pay and allowances that would flow from the reinstatement to the present time.

6.  The applicant states that further, the ABCMR concluded that he was entitled to back pay and benefits at the grade of E-5, which was the rank he held at the time, but failed to change his DD Form 214 to reflect the grade of E-5.

7.  The applicant provides ABCMR Docket Number AR20060014893, considered on 10 July 2007; his re-issued DD Form 214 with a DD Form 215 (Correction to DD Form 214); a memorandum, dated 30 April 1990; a letter, dated 15 February 1991; a letter, dated 25 February 1991; and Request for Orders, dated               11 February 1991.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 October 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Police).  Around August 1986, he was accredited as a U. S. Army Criminal Investigation Command (CID) special agent and awarded MOS 95D (CID Special Agent).  He was promoted to Staff Sergeant, E-6, on 16 June 1987.  He was assigned to the CID’s 2d Region, Germany, on or about 15 June 1988.

2.  By memorandum dated 30 April 1990, the applicant was congratulated on having been selected as a warrant officer candidate in MOS 311A (CID Special Agent).  He was informed that he had been tentatively scheduled to attend the Warrant Officer Candidate School (WOCS) at Fort Rucker, AL, on 11 March 1991.  

3.  Request for Orders, dated 11 February 1991, assigned the applicant, as a warrant officer one, to the Protective Services Activity at Headquarters, CID, in Falls Church, VA, with a report date of 17 July 1991.

4.  There is no evidence of record to show the applicant ever departed Germany to attend WOCS.  There is no evidence of record to show the applicant was ever appointed a warrant officer.

5.  On 1 July 1991, several court-martial charges were preferred against the applicant.

6.  On 14 November 1991, the applicant was convicted, contrary to his pleas, by a special court-martial of failing to pay a just debt and disobeying the order of a commissioned officer.  He was sentenced to be reduced to Sergeant, E-5, and to receive a letter of reprimand.  

7.  The complete facts and circumstances leading to the applicant’s discharge are not contained in the available records.  His discharge was apparently approved on 4 May 1992.  On 11 May 1992, he was discharged with a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct -- commission of a serious offense.  He had completed 11 years, 7 months, and 3 days of creditable active service.

8.  The applicant applied for relief from his special court-martial conviction.  On 23 May 1994, The Judge Advocate General found that he had not established a proper and sufficient basis for relief under one or more of the enumerated statutory grounds and accordingly denied his application for relief.

9.  On 15 September 2006, the ADRB determined that the applicant’s discharge was inequitable based on the overall length and quality of his service, the circumstances surrounding his discharge, his post-service accomplishments, and the time that had elapsed since his discharge.  The ADRB voted to upgrade the applicant’s discharge to fully honorable, to change the narrative reason for his separation to Secretarial Authority, and to change his reentry code to “1.”  

10.  The applicant’s DD Form 214 was accordingly re-issued.  Items 4a and 4b of his re-issued DD Form 214 showed his rank and grade as Private, E-1, and item 12h showed his effective date of pay grade as 4 May 1992.

11.  The applicant applied to the ABCMR and requested, in addition to other issues, reinstatement in the Army in the grade of E-6 and subsequent promotion to E-7.  On 10 July 2007, the ABCMR recommended, in part, that the applicant’s records be corrected to show he was retained in the service until the expiration of his enlistment (20 July 1992) when he was separated as an E-5.

12.  The applicant’s re-issued DD Form 214 was accordingly corrected with a DD Form 215.  However, items 4a, 4b, and 12h of the DD Form 214 were not corrected.

13.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) states, in pertinent part, that the appointment authority will issue a memorandum of appointment, Reserve Warrant Officer; and a DA Form 71 (Oath of Office – Military Personnel) to be executed on WOCS graduation day.  All appointments will be contingent on technical and tactical certification by completion of the appropriate warrant officer basic course or certification by the MOS proponent as technically and tactically certified for award of an authorized warrant officer MOS.

14.  Army Regulation 635-200 (Enlisted Personnel Management System), paragraph 2-31c(3) at the time, provided that Soldiers would be mandatorily reclassified, in part, when disciplinary action was taken under the Uniform Code of Military Justice when it adversely affected the Soldier's performance in his/her MOS and when MOS qualifications were lost.  Soldiers disqualified due to their own misconduct would be processed for separation under the provisions of Army Regulation 635-200.

15.  CID Regulation 195-1, paragraph 21-4c enumerates reasons CID agents may be eliminated from the CID Program.  Paragraph 21-4c(3) lists indiscretion, disaffection, breach of discipline, or abuse of privilege reflecting adversely on CID or on the Army; and paragraph 21-4c(4) lists, in the case of military CID agents, any of the reasons that subject an individual to elimination from the Army under the provisions of Army Regulation 635-200 or Army Regulation 600-8-24.

16.  Tippett v. United States, 185 F.3d 1255, 1999, concerned a commissioned officer who contended he was illegally and improperly discharged from the Army. Adkins v. United States, 68 F.3d 1317, 1995, concerned a commissioned officer who sought reinstatement.

DISCUSSION AND CONCLUSIONS:

1.  While it is true that the evidence shows the applicant was selected for appointment to warrant officer, the evidence of record also shows that the applicant was never appointed as a warrant officer.  

2.  The Request for Orders the applicant received and his assignment to Headquarters, CID as a CID warrant officer were contingent on his being appointed as a warrant officer.  There is no evidence to show he ever left 

Germany to attend WOCS, no evidence to show he attended and graduated from WOCS, and no evidence to show he was issued a memorandum of appointment or executed an oath of office as a Reserve warrant officer.  

3.  The applicant’s argument is also speculative in that he presumes his court-martial conviction would have no impact on his appointment.  There is no available evidence to show the applicant’s CID accreditation was withdrawn; Headquarters, CID, was not asked to review its records for any such evidence. However, considering the reasons enumerated in CID Regulation 195-1 that could provide a basis for eliminating an agent from the CID Program, it appears likely that the applicant would have been eliminated from the CID Program due to his conviction by court-martial, if for no other reason.  Elimination from the Program would have made him ineligible for appointment as a warrant officer in MOS 311A.

4.  The applicant cited two court cases.  Those cases do not apply to the applicant because the applicant was not an officer.  As he acknowledges in his application, for enlisted personnel the law provides only for retention to normal expiration of term of service when a discharge was erroneous.

5.  Therefore, there is insufficient evidence that would warrant reinstating the applicant in the Army as a warrant officer or granting him any of the further benefits he requests that would flow from his reinstatement in the Army as a warrant officer.

6.  The DD Form 215 correcting the applicant’s re-issued DD Form 214 should have also corrected his rank and grade to show he separated as a Sergeant,    E-5, with a date of rank of 14 November 1991.  Considering the many corrections already listed on the DD Form 215, it would be equitable to re-issue to him a new DD Form 214 with the rank/grade/date of rank correction and incorporating all of the corrections now listed on the DD Form 215.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  ___xx___  __xx____  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     re-issuing to him a new DD Form 214 incorporating all of the corrections now listed on the DD Form 215 in addition to showing his rank and grade as Sergeant, E-5, with a date of rank of 14 November 1991.

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 reinstating him in the Army as a warrant officer with the attending benefits that would have resulted from that reinstatement.



      _______xxxx___________
       	   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)                                         AR20080008730



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ABCMR Record of Proceedings (cont)                                         AR20080008730



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