IN THE CASE OF:	

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080017881 


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 the following:

	a.  restoration of $7,399.67 worth of pay and allowances that the Army recouped as an indebtedness; 

	b.  reinstatement to active duty until he can obtain a new surgical appointment and complete his surgery and recuperation; 

	c.  promotion to chief warrant officer five (CW5) effective 1 September 2008 as per the Mobilization Table of Distribution and Allowances (MOB TDA); 

	d.  adjustment of his pay records to provide for back and current pay and allowances as if he had not been separated and as if he had been promoted to CW5 on 1 September 2008; 

	e.  cancellation of his retirement until he has completed his surgery and recuperation; and 

	f.  retirement, upon completion of his surgery and recuperation, in the grade of CW5.

2.  The applicant states that:

	a.  he was born on 8 April 1946.  Accordingly, the Army determined that his mandatory removal date (MRD) was 7 June 2008 (age 62), taking into account the 60-day additional period prescribed by Title 10, U.S. Code (USC), section 1164a;

	b.  he was issued mobilization orders for a period of active duty to commence on 1 March 2008 and end on 28 February 2009, which would have exceeded his MRD; but, subsequent correspondence amended those orders to conclude his period of active duty no later than 6 June 2008.  He adds that during his outprocessing, it was determined that he was in need of bilateral knee surgery and he was notified on 29 May 2008 that he would be scheduled for surgery to be performed on 30 June 2008;

	c.  on 2 June 2008, he was retroactively transferred to the Warrior Transition Unit (WTU) at Fort Belvoir, VA, effective 30 May 2008, for a period of 179 days.  He subsequently reported as directed and complied with the WTU reporting procedures.  However, on 13 June 2008, he received further orders rescinding the unexecuted portion of his 2 June 2008 active duty orders retroactive to 6 June 2008.  He solicited help from the WTU commanding officer and departed on an authorized leave pending further guidance from the WTU commander.  He further adds that on 20 June 2008, the WTU commander informed him to continue outprocessing.  He was subsequently issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 6 June 2008;

	d.  in July 2008, the Army deducted the amount of $7,399.67 from his pay which appears to be the amount he was overpaid from 7 June 2008 to 30 June 2008.  He is entitled to reversal of this recoupment as well as reinstatement to active duty for the purpose of completing his previously scheduled surgery.  The Secretary of the Army had the authority to retain him on active duty until 6 October 2008, which would have been sufficient to complete the surgery and recuperate while on active duty.  He should not have to incur the expense of this costly surgery.  Additionally, since he had not secured civilian employment, it is unfair to require him to recuperate without receiving the normal active duty pay and allowances to which he believes he would have received had he not been improperly separated;

	e.  he was not treated appropriately and was improperly released from active duty with a significant unresolved medical issue.  He was denied the benefit that Congress intended when it conferred on the Secretary the power to extend an MRD by law; and 

	f.  he was selected for promotion to CW5 in April 2006.  If he had remained on active duty, he would have been promoted to CW5.  A MOB TDA published on or around 1 September 2008 re-designated the Human Resources Command (HRC) billet he was filling as a CW5 billet.  The permissible 120-day MRD extension would have carried him past not only the effective date of the MOB TDA but also the 31-day period needed to retire in the grade of CW5.

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

	a.  leave and earnings statements (LESs) for the months of July, September, and October 2008;

	b.  Orders A-06-810144, issued by HRC-Alexandria, VA, on 2 June 2008;

	c.  electronic mail message exchange, dated on various dates in June 2008, between the applicant and the WTU commander;

	d.  memorandum, dated 29 May 2008, medical treatment plan;

	e.  DA Form 4187 (Personnel Action), dated 29 May 2008;

	f.  DA Form 3349 (Physical Profile), dated 29 May 2005;

	g.  several sets of mobilization and amendment orders, issued by            HRC-St. Louis, MO, on various dates in 2008;

	h.  retirement Orders P-05-806396, issued by HRC-St. Louis on 7 May 2008;

	i.   memorandum of notification of promotion status, issued by HRC-St. Louis on 27 July 2006; and

	j.  DD Form 214, dated 6 June 2008.

COUNSEL REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel did not make a specific request.

2.  Counsel states that on behalf of the applicant, he submits an application for correction of military records and that the Board should advise him if it requires any further information.

3.  Counsel did not provide any additional documentary evidence in support of the applicant’s request. 


CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was born on 8 April 1946.  He initially enlisted in the Army National Guard (ARNG) on 3 January 1966.  He was honorably separated from the ARNG on 2 January 1969 and enlisted in the U.S. Army Reserve (USAR) on 3 January 1969.  He was honorably separated from the USAR on 2 January 1972.

2.  After a break in service, the applicant’s records show he was appointed as a warrant officer one in the Adjutant General Corps of the USAR on 23 September 1986.  He was promoted to chief warrant officer two (CW2) on 23 September 1989, chief warrant officer three on 23 September 1995, and chief warrant officer four (CW4) on 23 September 2001.

3.  On 21 February 2003, HRC-St. Louis published Orders M-02-301103, ordering the applicant to active duty for a period of 365 days in support of Operation Noble Eagle.  He subsequently entered active duty on 3 March 2003 and was assigned to the U.S. Total Army Personnel Command (now known as HRC), Alexandria, VA, in a CW4 position.

4.  On 6 February 2004, HRC-St. Louis published Orders M-02-301103A02 adjusting the applicant’s period of active duty from 365 days to 730 days.

5.  On 14 June 2004, HRC-St. Louis published Orders C-06-416706 releasing the applicant from his CW4 position on the HRC MOB TDA to another similar position on the same TDA and in the same grade, for the purpose of TDA revision/realignment.

6.  On 4 March 2005, HRC-St. Louis published Orders A-03-506458 further ordering the applicant to active duty for a period of 179 days for the purpose of contingency operations temporary tour of active duty (COTTAD) in support of Operation Noble Eagle beginning on 2 March 2005 and ending on 27 August 2005.  These orders were subsequently amended to show the period of active duty as 365 days.

7.  On 2 December 2005, the applicant contacted HRC-St. Louis and requested an extension beyond age 60.  However, he was informed that the USAR had no authority to extend him at the time since he was on active duty.

8.  On 9 February 2006, HRC-St. Louis published Orders A-02-603312 further ordering the applicant to active duty for a period of 365 days for the purpose of COTTAD in support of Operation Noble Eagle beginning on 2 March 2006 and ending on 1 March 2007.
9.  On 27 July 2006, HRC-St. Louis notified the applicant by memorandum of his selection for promotion to CW5 by a Department of the Army Reserve Components Selection Board (RCSB) that convened on 18 April 2006.  The notification memorandum further informed the applicant that in order to be promoted, he must remain in an active status, meet the time in grade requirements, be medically qualified for retention, meet weight and/or body fat standards, be assigned to a CW5 position, and complete the Master Warrant Officer Training Course (MWOTC)/Warrant Officer Senior Staff Course (WOSSC).

10.  On 20 October 2006, the applicant contacted HRC-St. Louis and requested his MRD be extended to age 62 since he did not have a 20-year letter.  He was informed by officials at HRC-St. Louis that his new MRD is the last day of the month in which he turns 62.   He requested an addition of 60 days, but was informed that the 60-day extension is granted only in special circumstances, such as medical issues.

11.  On 11 December 2006, the applicant contacted HRC-St. Louis and requested promotion orders to CW5 be published.  HRC officials reviewed the applicant’s position data to ensure he was in a valid "W5" position but his records showed he was in an Individual Mobilization Augmentee CW4 position, and as such, he was not in a promotable status.  The applicant submitted an unrecognizable TDA for unit identification code "W6EDAA" which belongs to the U.S. Army Force Management Support Agency.  However, the TDA did not show a "W5" position in either the current or future documents.  The document was also forwarded to HRC G-1 for adjudication and was determined to be a proposed future document.

12.  On 22 December 2006, HRC-St. Louis published Orders A-12-631390 further ordering the applicant to active duty for a period of 365 days, for the purpose of contingency operations for active duty operational support in    support of Operation Noble Eagle beginning on 2 March 2007 and ending on     29 February 2008.

13.  On 18 October 2007, HRC-St. Louis published Orders M-10-702757 ordering the applicant to active duty effective 1 March 2008 for a period of 365 days in support of Operation Enduring Freedom with a termination date of 28 February 2009.

14.  On 29 February 2008, HRC-St. Louis officials requested revocation of the applicant’s mobilization Orders M-10-702757 due to the fact that he would turn age 62 on 8 April 2008 and must be removed from active service not later than 60 days after the date in which he turns age 62.  The applicant was subsequently notified by email that HRC has requested revocation of his mobilization orders with a 1 March 2008 report date due to turning age 62 on 8 April 2008.

15.  On 29 February 2008, HRC-St. Louis published Orders M-10-702757A02 further amending the applicant’s period of active duty from 365 days to 128 days with a termination date of 6 July 2008.  Furthermore, on the same date, HRC-St. Louis published Orders M-10-702757A03, further amending the applicant’s period of active duty from 128 days to 98 days with a termination date of 6 June 2008.

16.  On 21 March 2008, the applicant was informed in detail the MRD calculation process as follows:

	a.  The MRD for Soldiers in the grade of WO1 is the date they turn age 62.  Separation or transfer to the Retired Reserve must occur no later than the last day of the month in which they turn age 62. 

	b.  The MRD for Soldiers in the grade of CW2 through CW5 is the date they turn age 60.  Separation or transfer to the Retired Reserve must occur no later than the last day of the month in which they turn age 60.  Furthermore:

		(1)  CW2s through CW5s who have 20 years qualifying service for retired pay purposes before turning age 60 (MRD is date a Soldier turns age 60) must request, in writing, an extension of their MRD no later than (NLT) 120 days prior to their turning age 60; and

		(2)  CW2s through CW5s who do not have 20 years qualifying service for retired pay purposes before turning age 60 will have their MRDs automatically extended by law to the earlier of the dates the Soldier will have 20 years of qualifying service for retired pay purposes or the date the Soldier will reach age 62.

17.  On 21 March 2008, the applicant submitted a request for reassignment to the Retired Reserve by reason of maximum age in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers).

18.  On 14 April 2008, by memorandum, the applicant submitted a request for retention in an active status after qualification for retired pay until age 62 as authorized by Title 10, USC, section 12308.  He further acknowledged that he could not be retained beyond the maximum age of 62 plus 60 days.

19.  On 14 April 2008, HRC-St. Louis published Orders C-04-807106, releasing the applicant from active duty by reason of completion of 20 or more years of Reserve duty and reassigning him to the Retired Reserve on 7 June 2008.

20.  On 7 May 2008, HRC-St. Louis published Orders P05-806396 placing the applicant on the retired list in his retired grade of CW4 effective 7 June 2008.

21.  On 21 May 2008, the applicant requested extension of MRD due to medical reasons.

22.  On 28 May 2008, by email, the applicant was notified that the applicant's request for extension of his MRD due to medical reasons was denied by the Department of the Army (DA) G-1.  He was further notified that he must be released from active duty in accordance with his orders.

23.  On 29 May 2008, the applicant submitted a DA Form 4187 requesting to volunteer for the Medical Retention Processing (MRP) Program and if approved, he also requested extension past his 6 June 2008 MRD for the purpose of medical treatment.

24.  On 29 May 2008, the applicant was issued a temporary physical profile that contained a "3" in the "L" portion of his PULHES (an index to the overall functional capacity of an individual).  He was also issued a memorandum by the WTU commander informing him that he was scheduled for right knee replacement at the National Naval Medical Center, Bethesda, MD, on 30 June 2008.

25.  On 2 June 2008, HRC-St. Louis published Orders A-06-810144, ordering the applicant’s retention on active duty for a period of 179 days, effective 30 May 2008 to participate in the Reserve Components Warriors in Transition MRP Program for completion of medical care and treatment.

26.  On 13 June 2008, HRC-St. Louis published Orders A-06-810144R rescinding the unexecuted portion of active duty Orders A-06-810144 effective 6 June 2008.

27.  Title 10, USC, section 1164 states that unless retired or separated on or before the expiration of that period, each warrant officer shall be retired or separated from his armed force no later than 60 days after the date when he becomes 62 years of age, except as provided by section 8301 of Title 5.  The Secretary concerned may defer, for not more than four months, the separation under the above of any warrant officer because of unavoidable circumstances, evaluation of his physical condition and determination of his entitlement to retirement or separation for physical disability requiring hospitalization or medical observation that cannot be completed before the date when he would otherwise be required to be retired or separated under this section.

28.  Title 10, USC, section 14509, requires that RC officers in grades below brigadier general be removed from the Reserve Active Status List on the last day of the month in which such officers attain age 62.  Previously, these officers were subject to mandatory removal at age 60.  An overwhelming majority of officers who seek to serve beyond age 60 require approval from the Assistant Secretary of the Army for Manpower and Reserve Affairs to receive service credit pursuant to Title 10, USC, section 12308, after qualifying for non-regular retired pay at age 60 to be retained pursuant to Title 10, USC, section 14701, beyond the date they attain their statutory maximum years of service.

29.  Title 10, USC, section 1371, provides, in effect, that a warrant officer retires, as determined by the Secretary concerned, in the permanent Regular or Reserve warrant officer grade, if any, that he held on the day before the date of his retirement, or in any higher warrant officer grade in which he satisfactorily served on active duty as determined by the Secretary for a period of more than 30 days.

30.  Title 10, USC, section 1406, governs non-regular service retirement and provides, in effect, that a Reserve or National Guard member who is entitled to retired pay under section 12731 of this title shall be retired in the highest grade held satisfactorily by the person at any time in the armed forces, other than in an inactive section of a Reserve Component.

31.  Army Regulation 635-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the USAR.  It provides, in pertinent part, a warrant officer who has been recommended for promotion to the next higher grade must meet the requirements listed below before being promoted in the Reserve Components:  be serving in an active status, be in the zone of consideration, be medically qualified, have undergone a favorable security screening, meet standards of the Army Body Composition Program, be a satisfactory participant, and serve in the higher grade in an authorized position.

32.  Table 2-3 of Army Regulation 135-155 states that WOSSC (formerly MWOTC) is not required for selection; however, the officer must possess a position vacancy coded "W5" and be a WOSC graduate before promotion to CW5.  Furthermore, paragraph 2-5 of Army Regulation 135-55 states that promotion to CW5 will be authorized only to fill vacancies rank coded "W5."
33.  Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Chapter 7 of this regulation covers removal from the active list.  It states that the provisions apply to Soldiers assigned to the Selected Reserve, the IRR, and the Standby Reserve (Active List).  Some of these provisions also apply to removal from the Standby Reserve (Inactive List).  Soldiers removed from active status will be discharged or transferred to the Retired Reserve.  Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.  Paragraph 7-3 of this regulation states that Soldiers not sooner removed for another reason will be removed when they reach maximum age.  Removal date will be the last day of the month in which they reach age 60 for general officers, field, company grade officers, commissioned warrant officers; Soldiers having 20 or more years of qualifying Federal service; and enlisted Soldiers.  Warrant officers other than commissioned warrant officers will be removed at age 62.

34.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be repaid a recouped debt in the amount of $7,399.67, reinstated to active duty until completion of surgery and recuperation; promoted to CW5, provided with back and current pay and allowances as if he had not been separated and as if he had been promoted to CW5 on 1 September 2008, and retired again in the grade of CW5 after completion of his surgery and recuperation.

2.  The evidence of record shows that the applicant was born on 8 June 1946.  Therefore, his MRD was established 7 June 2006.  He was notified early on that the MRD for a CW5 is the date he turns age 60 and that separation or transfer to the Retired Reserve must occur not later than the last day of the month in which he turns age 60.  Furthermore, CW5s who have 20 years qualifying service for retired pay purposes before turning age 60 must request, in writing, an extension of their MRD not later than 120 days prior to their turning age 60, and that CW5s who do not have 20 years qualifying service for retired pay purposes before turning age 60 (such as the applicant) will have their MRD automatically extended by law to the earlier of the dates the Soldier will have 20 years of qualifying service for retired pay purposes or reach age 62.

3.  The applicant’s MRD was thus correctly calculated and adjusted to the date he turned 62 years of age (8 April 2008) plus the 60 days allowed by law (7 June 2008).  The applicant, a senior Adjutant General warrant officer, knew or should have known the exact date of his MRD.  Therefore, the applicant was correctly released from active duty to the control of his USAR unit and was subsequently transferred to the Retired Reserve.  There is no error or injustice.

4.  The applicant's request to extend beyond his MRD was disapproved by the Secretary of the Army and he was accordingly required to be released from active duty not later than 7 June 2008.  Again, there is no error or an injustice.

5.  With respect to the recoupment of indebtedness, on the surface, the applicant appears to have performed active duty from 8 June 2008 to 30 June 2008.  However, orders were published prior to this date to release him from active duty to the control of his USAR unit.  He knew or should have known that he was no longer on active duty and therefore not entitled to active duty pay after this date.  Therefore, the overpayment of his pay and allowances was recouped by finance officials.  Again, there is neither error nor injustice in this recoupment.

6.  With respect to the applicant’s promotion to CW5, the evidence of record shows that his promotion was contingent upon, among other conditions, assignment to a "W5" position and completion the MWOTC/WOSSC.  There is no evidence in the available records and the applicant did not submit any substantiating evidence that he filled a "W5" position or that he completed the MWOTC/WOSSC.  Therefore, he was not promoted to CW5 and did not qualify for retirement at this grade.

7.  With respect to the adjustment of his pay records to provide for back and current pay and allowances as if he had not been separated and as if he had been promoted to CW5 on 1 September 2008, the applicant is assigned to the Retired Reserve and is entitled to non-regular retired pay.  There is no provision or justification for the applicant to receive back pay and allowances as if he had not been separated.

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 for correction of the records of the individual concerned.



      ___________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)                                         AR20080017881



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ABCMR Record of Proceedings (cont)                                         AR20080017881



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