IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100014975


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 records to show his retired pay grade as chief warrant officer three (CW3)/W-3, the highest rank/grade he satisfactorily held while on active duty, instead of sergeant first class (SFC)/E-7.  He also requests retroactive payment of the difference in pay from his date of retirement.

2.  The applicant states despite the ruling of the Army Grade Determination Review Board (AGDRB) (Docket Number AR20090015300), which determined his highest grade held as chief warrant officer two (CW2)/W-2, he should receive retired pay as a CW3.  He states his retirement orders listed his retired rank/grade as CW3; Army Human Resources Command, St. Louis, MO (HRC-STL), determined his retired rank/grade as CW3, and he was advanced on the retired list to CW3 effective 27 June 2003.

3.  The applicant provides:

* Orders S42-7, issued by the U.S. Total Army Personnel Command, Alexandria, VA, dated 3 March 1995
* a letter from HRC-STL, dated 15 March 2010 (now located at Fort Knox, KY)
* a letter from the Army Review Boards Agency (ARBA), Support Division, St. Louis, dated 16 March 2010
* a memorandum from ARBA, Arlington, VA, Subject:  30-Year Grade Determination (applicant's name, social security number), dated
27 January 2010
* 
an extract of Title 10, U.S. Code, Section 1293 from the Cornell University Law School website
* an extract of Title 10, U.S. Code, Section 1371 from the Cornell University Law School website

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 is a retired Regular Army (RA) Soldier.  He entered active service on 27 June 1973.  He served on active duty as a warrant officer from      5 September 1984 until he was separated on 1 September 1988 as a CW2.  He enlisted on 2 September 1984.  He served concurrently in a dual-component status as a warrant officer in the U.S. Army Reserve from 5 September 1984 until his retirement date of 1 June 1995.  He was retired on 1 June 1995 by reason of sufficient service for retirement in the rank/grade of SFC/E-7.  

3.  On 15 December 1993, he was promoted to CW3 as a Reserve Warrant Officer of the Army.

4.  Orders S42-7, dated 3 March 1995, show he was to be retired in the rank/grade of CW3/W-3 effective 1 June 1995.

5.  On 31 May 1995, he was honorably retired after completing 21 years,
11 months, and 4 days of total active service.  Item 4a (Grade, Rate, or Rank) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 May 1995 shows his rank as SFC and item 4b (Pay Grade) shows his pay grade as E7.

6.  It appears he was advanced on the retired list on 27 June 2003, 8 years and 26 days after his date of retirement.  This period, when added to his total credited active service of 21 years, 11 months, and 4 days, equates to 30 years and is consistent with the law under Title 10, U.S. Code, Section 3964.  It is unclear as to whether he was advanced to CW2 or CW3, as it is not indicated in his available records.

7.  On 27 January 2010, the AGDRB reviewed his request to have his retired pay changed to CW3.  In Army Review Boards Agency Docket Number AR20090015300, the board determined the highest grade in which he satisfactorily served for the purpose of computation of retired pay was W-2.

8.  In a letter from HRC-STL, dated 15 March 2010, he was informed of the AGDRB's findings but incorrectly reported his highest grade satisfactorily served as "Chief Warrant Officer (W-3)."

9.  In a letter from HRC-STL, dated 30 November 2010, the applicant was informed that it was determined that his retired grade should have been "Chief Warrant Officer (W-2) and that his records have been corrected accordingly.  He was further informed the Defense Finance and Accounting Service - Cleveland Center, Cleveland, OH (DFAS-CL) has been notified of the change in his retired pay grade.

10.  In a letter from HRC-STL, dated 30 November 2010, DFAS-CL was informed of the AGDRB's findings and reported the applicant's highest grade satisfactorily served for the purpose of computation of retired pay was "Chief Warrant Officer (W-2)."

11.  Army Regulation 635-100 (Personnel Separations - Officer Personnel), in effect at the time, provided the authority for the separation of commissioned and warrant officers from the Active Army.  Chapter 4 provided 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.

12.  Title 10, U.S. Code, section 1371 provides 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.

13.  Title 10, U.S. Code, section 3964 provides that each retired RA enlisted member who is retired with less than 30 years of active service is entitled, when active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he/she satisfactorily served on active duty, as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his retired pay to CW3/W-3 has been carefully considered; however, there is insufficient evidence to support his request.

2.  While he held a Reserve commission as a CW3, he did not serve on active duty as a CW3, for a period of 30 or more days.  The highest grade he served satisfactorily on active duty was CW2; therefore, the applicant is entitled to advancement on the Retired List to CW2/W-2.

3.  Upon reaching 30 years of service in the RA and on the Retired List, he was entitled to be retired at the highest grade he satisfactorily held while on active duty, that being CW2.  Therefore, he is entitled to a re-computation of his retired pay based upon his advancement on the Retired List to CW2/W-2.

4.  The applicant's case was correctly adjudicated before the AGDRB and its findings were appropriately reported to DFAS-CL.  Therefore, no further action is necessary.  In view of the foregoinge, 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.



      _______ _   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)                                         AR20090005877



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ABCMR Record of Proceedings (cont)                                         AR20100014975



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