IN THE CASE OF:
BOARD DATE: 23 October 2008
DOCKET NUMBER: AR20080011719
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 advanced on the retired list to the rank of Chief Warrant Officer Three (CW3).
2. The applicant states that at the time of his retirement his Reserve promotion to CW3 was not taken into account. He contends that he was informed that it would be automatically adjusted after ten years of retirement.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 1991; a memorandum, dated 26 July 1990; a letter, dated 10 June 2008; and retirement orders, dated 6 June 1991.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was born on 5 July 1950. He enlisted in the Regular Army on 22 February 1971. On 14 August 1984, he was honorably discharged in the rank of sergeant first class, appointed as a U.S. Army Reserve Warrant Officer, and ordered to active duty on 15 August 1984. On 30 June 1991, the applicant was retired in the rank of CW2. He was placed on the retired list in the rank of CW2 on 1 July 1991.
3. The applicants DD Form 214 for the period ending 30 June 1991 shows his rank as CW2.
4. In support of his claim, the applicant provided a memorandum, dated 26 July 1990, which shows that he was promoted to CW3 in the USAR effective
15 August 1990. There are no orders available showing he was promoted to temporary CW3 (i.e. an active duty promotion).
5. Title 10, United States Code, section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, (or, in the case if a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.
DISCUSSION AND CONCLUSIONS:
The applicant retired from active duty on 30 June 1991 in the rank of CW2. Even though he might have held a Reserve appointment as a CW3, there are no orders promoting him to temporary, active duty CW3 and there is no evidence the applicant ever served on active duty as a CW3. Therefore, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____XX____ ___XX_____ ____XX____ 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.
_______ 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) AR20080011719
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