IN THE CASE OF:
BOARD DATE: 6 April 2010
DOCKET NUMBER: AR20090016357
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, a promotion to Chief Warrant Officer Two (CW2) effective 20 September 1972 and back pay.
2. The applicant states, in effect, his promotion to CW2 was overlooked while he was in Vietnam and he should have been promoted to CW2 on 20 September 1972. He contends he was promoted to Warrant Officer One (WO1) on
20 September 1971, he was in Vietnam on 20 September 1972, and he wants his CW2 bars for his uniform for his son. He also states he would like back pay from 20 September 1972 to 6 December 1972.
3. The applicant provides a Department of Veterans Affairs letter, dated 28 April 2008, 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 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 enlisted in the Regular Army on 3 August 1970 and was honorably discharged in the rank/grade of specialist five (SP5)/E-5 on
19 September 1971. He was appointed as a U.S. Army Reserve (USAR) WO1 and ordered to active duty on 20 September 1971. He served as a helicopter pilot in Vietnam from 3 November 1971 to 5 November 1972. On 13 November 1972, the applicant requested release from active duty for education purposes. On 6 December 1972, the applicant was released from active duty in the rank of WO1 and transferred to the USAR.
3. After his release from active duty, the applicant was promoted as a Reserve warrant officer to CW2 on 20 March 1975.
4. Army Regulation 624-100 (Promotion of Officers on Active Duty), in effect at the time, stated, in pertinent part that warrant officers (WO1) would attain eligibility for temporary promotion to CW2 upon completion of 18 months of active duty service.
5. Army Regulation 135-158 (Promotion of Reserve Warrant Officers, Army National Guard and Army Reserve), effective 1 March 1972, stated that a WO1 must complete 3 years of promotion service to be eligible for selection for promotion to CW2.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his promotion to CW2 was overlooked while he was in Vietnam and he should have been promoted to CW2 effective 20 September 1972.
2. The applicant was appointed as a Reserve WO1 on 20 September 1971 and he completed 14 months of active duty service. The governing regulation provided that a WO1 would attain eligibility for a temporary promotion to CW2 upon completion of 18 months of active duty service. The applicant would not have reached his 18 months of active duty service until March 1973. Therefore, there is no basis for granting the applicant's request for a promotion to CW2 effective 20 September 1972 or back pay.
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) AR20090016357
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ABCMR Record of Proceedings (cont) AR20090016357
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