IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100008867 


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 30 September 2004 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as Chief Warrant Officer Four (CW4)/W4 and his award of the Bronze Star Medal (BSM).

2.  The applicant states it was an administration oversight concerning his promotion to CW4.  However, his award of the BSM was not authorized until after his retirement. 

3.  The applicant provides a copy of his DD Form 214, promotion memorandum, and BSM certificate.

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's records show he was appointed as a U.S. Army Reserve warrant officer on 24 August 1990.  He was honorably retired on 30 September 2004.

3.  The applicant's DD Form 214 shows his rank/pay grade as CW3/W3 with his effective date of pay grade listed as 24 August 1998. 

4.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show the award of the BSM.

5.  Memorandum from Human Resources Command (HRC), St Louis, shows the applicant was promoted to CW4, effective 24 August 2004.  The memorandum stated that promotion is not valid and will be revoked if the applicant is not in a promotable status on the effective date of promotion.

6.  The BSM certificate shows that on 25 March 2005 the applicant was awarded the BSM for outstanding meritorious service from 23 April 2003 to 15 December 2003 as a Battalion Property Book Officer, Rear Detachment Commander, 324th Military Police Battalion, in Support of Operation Iraqi Freedom.

7.  A review of the applicant's official military personnel file (OMPF) shows on
15 September 2003 he was recommended for the BSM.  However, on 
20 January 2004, the Commanding General, 377th Theater Support Command, disapproved the award of the BSM and downgraded the award to the Army Commendation Medal (ARCOM).  Additionally, a copy of the ARCOM certificate with Permanent Order Number 020-56, dated 20 January 2004, also contained in the applicant's OMPF, shows he was awarded the ARCOM from 23 April 2003 to 15 December 2003 as the Battalion Property Book Officer during Operation Iraqi Freedom.

8.  The applicant's OMPF does not contain a copy of his retirement orders or his DD Form 214.

9.  Information obtained from the Chief, Office of Promotions, HRC, St. Louis verified that the applicant was promoted to CW4 effective 24 August 2004 and his rank and date of rank is reflected in the general information on the Interactive Personnel Electronic Records Management System.





10.  Title 10, U.S. Code, section 1371 states that unless entitled to a higher retired grade under some other provision of law, 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 served on active duty satisfactorily, as determined by the Secretary, for a period of more than 30 days.

11.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  This regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Paragraph 2-4 requires the preparer to enter the active duty grade or rank and pay grade at the time of separation from the Officer Record Brief in item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) and date of pay grade in item 12h (Effective Date of Pay Grade).

12.  Army Regulation 600-8-22 (Military Awards) states that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.  The award of a decoration in recognition of a single act of heroism or meritorious achievement does not preclude an award for meritorious service at the termination of an assignment.  Recommendations for award of a decoration for meritorious service will not refer to acts of heroism or meritorious achievement which have been previously recognized by award of a decoration.  

DISCUSSION AND CONCLUSIONS:

1.  The memorandum for promotion, as well as the Chief, Office of Promotions, HRC, St. Louis verified that the applicant was promoted to CW4 effective 
24 August 2004.  Therefore, he is entitled to correction of his records to show this promotion.

2.  While the applicant may have been recommended for award of the BSM, the commanding general elected to downgrade the award to an ARCOM.  It is noted that the certificate for the award of the BSM is dated 25 March 2005 (over a year after the downgrade) which could possibly mean the award was later approved as the original recommended BSM.  However, in the absence of orders confirming the award of the BSM, there is no basis to approve his request. 




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his grade and rank on his 30 September 2004 DD Form 214 as CW4/W4 and the effective date of pay grade as 24 August 2004.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the award of the BSM.



      _______ _   _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)                                         AR20100008867





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100008867



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1