IN THE CASE OF:	  

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090010357 


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 his 1999 discharge be voided and correction of his records to show he remained on active duty until mandatory retirement at 20 years, with appropriate back pay and allowances.

2.  The applicant states, in effect, that he was improperly discharged on 1 February 1999 with 18 years and 14 days net active service and he should have been allowed to remain on active duty until he completed 20 years of service and mandatorily retired.  He also states that he was informed that Sanctuary Status was for commissioned officers only and it did not apply to warrant officers (WO).  He disagreed and was told the memorandum:  Notification of Discharge, dated 25 September 1998, was the reason.  He was also told that he had no Reserve obligation, but he would be assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He received a DD Form 214 (Certificate of Release or Discharge from Active Duty) on 1 February 1999.  He further states, in effect, later he was promoted to chief warrant officer four (CW4) with a date of rank of 2 February 1999, one day after his discharge.  Subsequently, he was advised that he was required to attend the WO Staff Course due to his promotion.  Therefore, he attended the course from 4 September to 28 September 2001 and he received a DA Form 1059 (Service School Academic Evaluation Report), but did not receive a DD Form 214 updating his Active Federal Service (AFS) for this period.  At the time, he was not aware he should have received another DD Form 214.


3.  The applicant also states, in effect, that on 21 July 2008, he transferred from the Individual Ready Reserve (IRR) to a troop program unit (TPU).  He was mobilized on 28 September 2008 and ordered to active duty in support of Operation Iraqi Freedom (OIF).  Since his discharge, he has been back on active duty twice.  Had this situation not occurred he would have stayed on active duty for 20 years to complete his retirement and longer if allowed.

4.  In support of his application, the applicant provides copies of a Computation of Officer’s Service form, dated 1 September 1998; a U.S. Total Army Personnel Command (USTAPC), Alexandria, VA memorandum, subject: Notification of Discharge from the Regular Army, dated 25 September 1998; a DA Form 7301-R (Officer Service Computation for Retirement), dated 23 October 1998; his signed memorandum, subject: Acknowledgement of Mandatory Release or Discharge from Active Duty, informing him of his mandatory separation date of 1 February 1999; a copy of Orders 355-02, published by the Army Personnel Support team, MacDill Air Force Base, FL, dated 21 December 1998, and a copy of his DD Form 214 for the period ending 1 February 1999.

5.  The applicant also provided a USTAPC, St. Louis, MO memorandum, subject: Promotion as a Reserve Commissioned Warrant Officer of the Army, promoting him in the USAR to CW4 effective 2 February 1999; a copy of Orders T-05-108617, published by U.S. Army Reserve Personnel Command, St. Louis, dated 9 May 2001, ordering him to active duty with a reporting date of 3 September 2001 for 26 days for the purpose of attending the WO Staff Course; a copy of his DA Form 1059 showing completion of the WO Staff Course, dated 28 September 2001; a copy of Orders C-07-813601, published by U.S. Army Human Resources Command (USAHRC), St. Louis, dated 21 July 2008, reassigning him from the USAR Control Group (Reinforcement) to a TPU; a copy of Permanent Orders Number W08890703, published by USAHRC, St. Louis, dated 5 August 2008; a copy of Orders 08-239-00013, published by the 11th Aviation Command, Fort Knox, KY, dated 26 August 2008, ordering him to active duty as a member of his Reserve Component unit for 400 days in support of OIF; and a copy of Order 304-006, published by Headquarters, III Corps, Fort Hood, TX, dated 30 October 2008, attaching him to the OIF U.S. Central Command area of responsibility for 365 days with a will proceed date of 31 October 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the USAR Delayed Entry Program on 3 December 1980.  He enlisted in the Regular Army on 19 March 1981.  He was honorably discharged on 10 October 1983.  He was issued a DD Form 214 showing a credit of 2 years, 6 months, and 22 days net active service for the period 19 March 1981 to 10 October 1983.
2.  The applicant was appointed in the USAR as a WO1 effective 11 October 1983 and entered active duty that date.  He was promoted to CW3 effective 1 February 1992.

3.  The applicant submitted a copy of a Computation of Officer’s Service form, dated 1 September 1998, that shows he had a credit of 17 years, 10 months, and 12 days of total active service as of 31 January 1999.

4.  A Notification of Discharge from the Regular Army memorandum, dated 25 September 1998, advised the applicant of his non-selection for permanent promotion to CW4 and a mandatory separation date of 1 February 1999.  On an unspecified date, the applicant acknowledged his non-selection and mandatory separation date of 1 February 1999.  In this notification the applicant indicated he desired an appointment in the USAR.

5.  The applicant also submitted a copy of a DA Form 7301-R, dated 23 October 1998, that shows he had a credit of 20 years and 13 days of total active service.  This document appears to carry the computation of his service out to 31 January 2001.  It also shows he had enlisted service from 1 May 1978 through                  2 December 1980.  The applicant did not indicate on his DA Form 61 (Application for Appointment) that he had military service during this period, but there is some indication he may have been in the Reserve Officers’ Training Program during that period.

6.  The applicant was honorably released from active duty on 1 February 1999, for non-selection for permanent promotion, under the provisions of Army Regulation 600-8-24, (Officer Transfers and Discharges), paragraph 2-41.  He was transferred to the USAR Control Group (Reinforcement).  He was issued a DD Form 214 showing he entered active duty on “18 January 1981” and he was credited with 18 years and 14 days net active service this period and 2 years, 8 months, and 23 days of prior active service.

7.  The applicant was considered and selected for promotion to CW4 by the 2000 Reserve Components Selection Board (RCSB).  On 1 August 2000, he was issued a promotion memorandum with an effective date and date of rank of 2 February 1999.

8.  The applicant was ordered to active duty for training (ADT) for a period of 26 days, with a report date of 3 September 2000.  He attended and completed the WO Staff Course from 4 September to 28 September 2001.  He was not issued a DD Form 214.  He was reassigned from the IRR to a TPU effective
21 July 2008. 

9.  The applicant was ordered to active duty in support of OIF and he entered on active duty on 28 September 2008.  He was honorably released from active duty 
on 17 October 2009 and he transferred to a Reserve unit.  He was again ordered to active duty on 18 October 2009 to obtain 20 years of AFS and he is currently serving on active duty under the Extended Active Duty Sanctuary Program.

10.  Army Regulation 600-8-24 (Officer Promotions), paragraph 2-41, in effect at the time, specified that Reserve WOs serving on active duty as warrant officers who failed a second time to be selected for promotion to the permanent grade of CW4 would be processed for involuntary release from active duty.  Officers and WOs within 2 years of qualifying for retirement would be retained on active duty until they are qualified for retirement and then retired.

11.  Army Regulation 135-155 (Promotion of Commissioned Offices and Warrant Officers Other than General Officers) states CW3s will be considered for promotion to CW4 when they reach 6 years time in grade.

12.  Army Regulation 635-5 (Separation Documents), paragraph 2-1(a)(2) specifies that a DD Form 214 will be prepared for Reserve Component Soldiers completing 90 days or more of continuous ADT or AGR Soldiers on active duty.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to the voiding of his 1999 discharge from active duty, with reinstatement on active duty and entitlement to back pay and allowances.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions have been noted; however, the evidence shows he entered active duty on 19 March 1981 in an enlisted status.  There is no evidence of record, other than the DA Form 7301-R, that shows he had prior military service.  He was appointed in the USAR as a WO1 on 11 October 1983 and he remained on active duty.  

3.  On 25 September 1998, the applicant was advised of his non-selection for permanent promotion to CW4 and mandatory separation as a result of his non-selection.  He acknowledged his non-selection and upcoming discharge and he stated he desired to be appointed in the USAR.  He was released from active duty on 1 February 1999 and he was transferred to the USAR as requested.  


4.  There is no evidence of record and the applicant has provided none to show he was improperly discharged from active duty on 1 February 1999.  His DD Form 214 for this period erroneously shows he entered on active duty on           18 January 1981 and therefore erroneously shows he completed 18 years and 14 days of active service that period.  He actually entered active duty on           11 October 1983 that period and had completed only 15 years, 3 months, and 22 days of active service that period, for a total of 17 years, 10 months, and 14 days of active service.  On 1 February 1999, the applicant had not completed 18 years or more of AFS.  Therefore, in accordance with regulatory guidance, he was not within 2 years of qualifying for retirement and he was discharged accordingly.  He is currently serving on active duty to obtain 20 years of AFS under the Extended Active Duty Sanctuary Program.

5.  In 2000, the applicant was subsequently selected and promoted to CW4 in the USAR.  The date of rank he was given is correct for a USAR officer not on active duty –the first day he was placed on the Reserve Active Status List because he already had 6 years time in grade as a CW3.  

6.  Pertinent regulations show a USAR Soldier who has completed 90 days or more of continuous active duty would be issued a DD Form 214.  Therefore, the applicant is not entitled to the issuance of a DD Form 214 for his period of active duty from 3 September to 28 September 2001.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090010357



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ABCMR Record of Proceedings (cont)                                         AR20090010357



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