BOARD DATE: 28 September 2010
DOCKET NUMBER: AR20100015117
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect his correct rank.
2. The applicant states he was promoted to Chief Warrant Officer Three/W-3 (CW3/W-3) while on terminal leave and his DD Form 214 was not corrected to reflect his correct rank.
3. The applicant provides retirement and promotion orders 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's record shows he served on active duty in an enlisted status from 28 November 1966 through 30 September 1979, and that on 1 October 1979 he was appointed a Warrant Officer One/W-1 (WO1/W-1) and continued serving on active duty in that status. He was promoted to Chief Warrant Officer Two/W-2 (CW2/W-2) on 1 October 1981.
3. On 18 August 1986, the applicant's retirement was approved by Department of the Army (DA) and Headquarters, United States Army Military Personnel Center (MILPERCEN) Orders S-159-3 were published directing the applicant's retirement from active service on 30 November 1986. These orders established his retired grade as CW2/W-2.
4. On 9 October 1986, orders were published promoting the applicant to CW3/W-3, effective 1 November 1986.
5. On 30 November 1986, the applicant was honorably released from active duty for the purpose of retirement. The DD Form 214 he was issued at the time lists his rank and pay grade as CW2/W-2 in items 4a (Grade, Rate or Rank) and 4b (Pay Grade).
6. Army Regulation 624-100 (Promotion of Active Duty Officers) provided the Army's officer promotion policy in effect at the time. Paragraph 1-9 identified categories of officers who were in a non-promotable status. It stated officers in these categories would not be promoted (in spite of the publication of orders). Included in the list of non-promotable status officers were warrant officers who had their voluntary retirement applications approved by DA. This guidance remains the same in the current version of the officer promotion regulation (Army Regulation 600-8-29).
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his DD Form 214 should be corrected to reflect his rank and pay grade as CW3/W-3 has been carefully considered. However, by regulation warrant officers who have had their voluntary retirement applications approved by DA are in a non-promotable status and will not be promoted in spite of the publication of orders.
2. The evidence of record confirms the applicant's voluntary retirement request was approved by DA on 18 August 1986, more than two months prior to the publication of his CW3/W-3 promotion orders. Therefore, given he was in a non-promotable status when his promotion orders were published, he was not eligible for promotion while in a terminal leave status pending his retirement on 30 November 1986.
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) AR20100015117
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