IN THE CASE OF:	  

		BOARD DATE:	    15 December 2009

		DOCKET NUMBER:  AR20090011823 


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, correction of his records to show he received a direct appointment as a warrant officer in the rank/grade of warrant officer one (WO1)/W-1 or chief warrant officer two (CW2)/W-2 under the provisions of Title 10, U.S. Code.

2.  The applicant states, in effect, the documents he provides offer proof that he is eligible for appointment as a warrant officer and his promotion is long overdue.

3.  The applicant provides copies of personal documents and identification cards; civilian education transcripts; military training certificates; award orders and certificates; letters of commendation, appreciation, and recommendation; his separation and discharge documents; and medical statements in support of his application.

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army (RA) from 5 October 1979 to
30 September 1983.  He then served in the Army National Guard (ARNG) from
1 October 1983 to 3 October 1985, U.S. Army Reserve (USAR) from 16 May 1986 to 8 July 1993, ARNG from 1 July 1994 to 30 June 1995, USAR from 1 July 1995 to 12 August 2000, USAR (on active duty) from 13 August 2000 to
30 August 2002, and ARNG from 31 August 2004 to 16 February 2006.  The highest rank/grade the applicant held was staff sergeant (SSG)/E-6.

3.  Headquarters, Massachusetts National Guard, Office of The Adjutant General, Milford, MA, memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 22 September 2005, shows the applicant was notified that he had completed the required years of service and he was eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, section 12731.

4.  The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant enlisted on 31 August 2004, he was honorably separated on 16 February 2006 under the provisions of National Guard Regulation 600-200, paragraph 8-26j(1), with a narrative reason of "medically unfit for retention," and he was transferred to the USAR Retired Reserve.  At the time he had completed 1 year, 4 months, and 16 days of net service this period; 15 years, 3 months, and 8 days of prior Reserve Component service; 5 years, 2 months, and 26 days of prior active Federal service; 21 years, 10 months, and 20 days of total service for pay; and 20 years, 1 month, and
26 days of total service for retired pay.  At the time of his separation the applicant held the rank/grade of SSG/E-6.

5.  There is no evidence in the applicant's military personnel records that he submitted an application for appointment as a warrant officer.  There is also no evidence that the applicant was offered an appointment as a warrant officer or that he was administered an oath of office accepting an appointment as a warrant officer in the U.S. Army.

6.  In support of his application, the applicant provides the following documents:

   a.  personal documents and identification cards pertaining to the applicant's birth and ethnicity that show the applicant is 50 years of age and a member of the Mashpee Wampanoag Indian Tribe on the Tribal Roll;

   b.   copies of transcripts from five civilian educational institutions that show, in pertinent part, the applicant has been credited with completing 55 credit hours as of 25 June 2009 and he is majoring in Fire Protection and Safety;

	c.  copies of documents pertaining to the applicant's military training throughout the period of his military service that show, in pertinent part, the applicant completed the Light Wheel Vehicle Mechanic course for military occupational specialty (MOS) 63B, Heavy Wheel Vehicle Mechanic course for MOS 63S, Active Guard/Reserve Entry Training, the Defense Basic Preservation and Packing course, Department of Transportation Hazardous Material Training, and the Environmental Regulatory Compliance Refresher course;

   d.  award orders and certificates that show the applicant was awarded the Army Good Conduct Medal, Global War on Terrorism Service Medal, and the Cold War Certificate of Recognition; 

   e.  a letter of commendation based on the applicant's significant contributions to the Cobra Motor Maintenance Program in 1982;

	f.  a letter of appreciation based on the applicant's dedicated service as a member of the Wheeled Vehicle Maintenance Team, Cobra Troop, 2nd Armored Cavalry Regiment, from July 1982 through April 1983;

   g.  three letters of recommendation (dated 8 February 1989, 24 February 1995, and10 March 1995) offered in support of the applicant's appointment as a warrant officer in the ARNG and that also endorse the applicant for admission to the Warrant Officer Training program; 

   h.  separation orders and discharge documents that substantiate the applicant's military service; and

   i.   two medical statements that show the applicant had a normal physical examination completed in 2008 and that show he was found able to return to work with no restrictions.

7.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) provides procedures for the appointment of commissioned and warrant officers in the Reserve components of the Army.  Chapter 2 (Processing), paragraph 2-1 (Applications and allied papers), shows that the
DA Form 61 (Application for Appointment) will be submitted, along with enclosures and a recommendation by the applicant's commander, through the chain of command to the appropriate Army component headquarters.
8.  Title 10, U.S. Code, chapter 69 (Retired Grade), section 1372 (Grade on retirement for physical disability), in pertinent part, provides that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability is entitled to the grade or rank in which he/she is serving on the date when he/she is retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was appointed as a USAR warrant officer in the rank of WO1 or CW2 because he is eligible for appointment as a warrant officer and his promotion is long overdue.

2.  Records show the applicant was honorably discharged from the ARNG on
16 February 2006 in the rank/grade of SSG/E-6, he was transferred to the USAR Retired Reserve in the rank/grade of SSG/E-6, and the highest rank/grade he held during his tenure of military service was SSG/E-6.  Therefore, the applicant is not entitled to promotion to any higher grade.

3.  The evidence of record shows that the applicant had a normal physical examination completed in 2008 and he was found able to return to work with no restrictions.  It is noted that the applicant was a member of the retired reserve at the time and there is no evidence this determination was based on the medical fitness standards outlined in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  Therefore, the applicant provides insufficient evidence to support his contention that he is eligible for appointment as a warrant officer in the U.S. Army.

4.  There is no evidence that the applicant submitted an application for appointment as a warrant officer, that he was offered an appointment as a warrant officer, or that he was administered an oath of office accepting an appointment as a warrant officer in the U.S. Army in the rank of WO1 or CW2.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he was appointed as a warrant officer in the U.S. Army or U.S. Armed Forces.

5.  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.



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)                                         AR20090011823



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ABCMR Record of Proceedings (cont)                                         AR20090011823



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