IN THE CASE OF:
BOARD DATE: 21 MAY 2009
DOCKET NUMBER: AR20090002273
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 correction of his retired grade from chief warrant officer two (CW2) to chief warrant officer three (CW3).
2. The applicant states his retired grade is incorrect due to a lack of communication between the Active Army and the Army National Guard.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 24 September 1975, and a copy of his promotion to CW3 memorandum, issued by Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, on 8 July 1976.
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's records show he was born on 10 March 1945 and enlisted in the Regular Army for a period of 3 years on 18 June 1963. He subsequently completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 356.10 (Electrical Devices Repairer). He was honorably discharged in the rank of specialist four (SP4)/E-4 on 28 August 1967 for the purpose of accepting an appointment as a warrant officer.
3. The applicant's records show he was appointed as an aviation warrant officer in the Alabama Army National Guard (ARNG) and executed an oath of office on 29 August 1967. His records also show he was promoted to CW2 on 3 October 1970.
4. On 1 April 1974, the U.S. Army Military Personnel Center (MILPERCEN), Alexandria, VA, notified the applicant by memorandum that he was considered for promotion to CW3 but not selected.
5. On 2 June 1975, MILPERCEN notified the applicant by memorandum that he was considered for promotion to CW3 but not selected. He was also notified that by regulation he was required to be released from active duty because he had been twice not selected for promotion. He acknowledged receipt of this memorandum on 26 July 1975.
6. On 21 August 1975, Headquarters, III Corps and Fort Hood, Fort Hood, TX, published Orders 168 directing the applicant's release from active duty effective 24 September 1975. The DD Form 214 he was issued shows he completed a total of 12 years, 3 months, and 7 days of creditable active military service.
7. After a short break in service, the applicant enlisted in the Wyoming ARNG (WYARNG) in the rank/grade of sergeant (SGT)/E-5 for a period of 3 years on 12 May 1976. He was subsequently assigned to the 3rd Battalion, 49th Field Artillery, Riverton, WY, in MOS 13E (Cannon Fire Direction Specialist).
8. On 8 July 1976, the Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, notified the applicant by memorandum that he was promoted as a Reserve warrant officer of the Army to CW3 effective 29 August 1976.
9. On 21 September 1977, by letter, the Chief, Removal and Transfer Branch, Personnel Actions Division, Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, notified The Adjutant General, State of Wyoming, that the applicant's appointment as a Reserve warrant officer of the Army was vacated based upon his enlistment in the WYARNG on 12 May 1976.
10. The applicant's records further show he executed a series of extensions and/or reenlistments in the WYARNG.
11. On 7 August 1995, the Office of the Adjutant General, WYARNG, published Orders 140-159 directing the applicant's honorable discharge from the ARNG and subsequent transfer to the Retired Reserve effective 3 May 1995. The NGB Form 22 (Report of Separation and Record of Service) he was issued shows he completed a total of 25 years, 4 months, and 2 days of service for pay.
12. On 31 January 2005, the U.S. Army Reserve Personnel Command (now known as the U.S. Army Human Resources Command, or HRC), St. Louis, MO, published Orders P01-580918 placing the applicant on the Retired List in the rank of SGT/E-5 effective 10 March 2005, the date he turned age 60.
13. On 30 June 2008, HRC-St. Louis published Orders P01-580918A01 amending the applicant's retirement orders to show he retired in the grade of CW2 which is the highest rank/grade he held.
14. Title 10, U.S. Code, section 12731, states that a person is entitled upon application to retired pay if the person is at least 60 years of age and has performed at least 20 years of service as computed under section 12732 of this title.
15. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his retired grade should be changed from CW2 to CW3.
2. The evidence of record shows that the applicant was honorably discharged in the grade of CW2 on 24 September 1975. He subsequently enlisted in the WYARNG in the rank/grade of SGT/E-5 on 12 May 1976. He was notified shortly thereafter that he was promoted to CW3 as a Reserve warrant officer of the Army with an effective date of 29 August 1976 after he had been released from active duty and enlisted in the WYARNG. However, his promotion was vacated as a result of his earlier enlistment in the WYARNG.
3. There was no lack of communication between the Active Army and the Army National Guard. The applicant had been twice passed over for an active duty promotion to CW3. His 1976 promotion to CW3 was a Reserve promotion. However, he had been discharged from his warrant officer status in September 1975.
4. The applicant never held or served in the rank of CW3. The highest rank he held was CW2. Accordingly, he could not have been retired in the grade of CW3. His retirement orders correctly reflect his retirement grade as CW2. There is neither an error nor an injustice.
5. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. Therefore, he is not entitled to the requested relief.
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.
__________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.
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