BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130001478 


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 revocation of his retirement orders so that he can return to active duty with a promotion to chief warrant officer three (CW3).

2.  The applicant states it was determined that he was eligible for promotion consideration by a Special Selection Board (SSB) under the fiscal year (FY) 2010 criteria due to omission from the Department of the Army (DA) Reserve Components Selection Board for FY10.  The board convened on 8 February 2012.  Prior to approval of the SSB, he was transferred to a retired status on 
1 May 2012.  He further submits that he is physically fit and continues to meet the Army height and weight requirements.

3.  The applicant provides a letter from the Chief, Special Actions Branch, U.S. Army Human Resources Command (HRC).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 19 May 1952.  Having prior enlisted service, he was appointed as a warrant officer one in the U.S. Army Reserve (USAR) on    25 June 1987.  He was promoted to the rank of chief warrant officer two (CW2) effective 31 May 1990.

2.  The applicant was considered twice for promotion to the next higher grade (in 1995 and 1996) by the Reserve Selection Board and he was subsequently passed over for promotion on each occasion.  As a result of his second non-selection, he was separated from the USAR on 31 March 1992.
3.  On 30 October 2006, he enlisted in the USAR in the rank of sergeant.  

4.  On 17 April 2008, he was once again appointed as a CW2, Reserve Warrant Officer of the Army, under Title 10, U.S. Code.

5.  The evidence shows the applicant previously applied to the Army Board for Correction of Military Records (ABCMR) to adjust his date of rank (DOR) to CW2.  The Chief, Reserve Appointments and Accessions Branch opined that the applicant's DOR was incorrect and corrected it to reflect 2 June 2005.  The applicant concurred with the corrected DOR.  Subsequently, the ABCMR required no further action. 

6.  His record contains a memorandum from the Deputy Director, Army Reserve Officer Personnel Management Directorate who informed the applicant that his sanctuary retirement was approved for 30 April 2012.

7.  Having sufficient service for retirement, the applicant retired honorably in the rank of CW2 on 30 April 2012.  

8.  On 13 July 2012, the Secretary of the Army recommended the Secretary of Defense (SECDEF) appoint the applicant on the scroll to the rank of CW3 in the Reserve of the Army.

9.  On 14 September 2012, the SECDEF appointed the applicant to CW3 in the Reserve of the Army under Title 10, U.S. Code.  He was 60 years, 3 months, and 27 days of age.

10.  The applicant provides a letter from the Chief, Special Actions Branch, HRC.  The letter is in reference to the applicant's consideration for promotion by an SSB.  The letter states the applicant was eligible for promotion consideration by an SSB under the FY10 criteria due to omission by a DA Reserve Components Selection Board for the cited year.  Prior to approval of the special board under the 2010 criteria, he was transferred to a retired status.  The Assistant Secretary of the Army for Manpower and Reserve Affairs directed, based on Title 10, U.S. Code, special boards for "former officers" without a directive from the ABCMR cannot occur.  If a former officer is selected by a special board, it is at the discretion of the Secretary of the Army via the ABCMR to determine if the discharge/retirement order should be revoked, the officer returned to an active status and promoted provided he/she meets all other promotion requirements.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  A material error is one or more errors of such a nature that the judgment of the reviewing official (or body) may have caused an individual's non-selection by a promotion selection board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  Table 2-3 (Warrant Officer Time in Grade and Military Education Requirements) of this regulation shows six years as the maximum years in the lower grade for promotion from CW2 to CW3.  

12.  Army Regulation 135-32 (Retention in an Active Status After Qualification for Retired Pay) covers the retention of certain Reserve Component Soldiers in an active Reserve status beyond the date they become qualified for retired pay.  Paragraph 5a states Army National Guard of the United States and USAR commissioned officers (including commissioned warrant officers) and warrant officers who are qualified for retired pay under Title 10 U.S. Code 12731 may be retained in an active status under Title 10, U.S. Code 12308 until they attain the age indicated in (1) below.  (1)  Warrant officers, including commissioned warrant officers, not later than 60 days after the date they become 62 years of age.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his retirement orders revoked in order to  return to active duty with a promotion to CW3 was carefully considered and appear to have partial merit.

2.  Evidence shows that based on the applicant's adjusted DOR to CW2 of             2 June 2005, he was eligible for promotion consideration and subsequently selected by an SSB under the FY10 criteria due to omission by a DA Reserve Components Selection Board for the cited year.  

3.  However, the applicant retired on 30 April 2012 under the sanctuary program prior to being promoted to the rank of CW3.  The SECDEF subsequently appointed him to CW3 on 14 September 2012 at the age of 60 years, 3 months, and 27 days of age.  The applicant will reach the age of 62 on 19 May 2014.  

4.  The applicant's adjusted DOR to CW2 is 2 June 2005.  In accordance with Table 2-3 of Army Regulation 135-155, and based on his selection by the SSB under the FY10 criteria due to his omission by the DA Reserve Components Selection Board for the cited year, the applicant should be promoted to the rank of CW3 with an effective date and DOR of 2 June 2011.  However, based on the applicant's age it would not be appropriate to return him to an active duty status.  
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:

   a.  revoking his retirement orders and promoting him to the rank of CW3 with an effective date and DOR of 2 June 2011;  

   b.  amending his retirement orders and associated documents to show that he retired on 30 April 2012 in the rank of CW3; and
   
   c.  providing the applicant all pay and allowances and retired pay due based on this correction.
   
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 returning the applicant to an active duty status.




      _______ _  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)                                         AR20130001478



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ABCMR Record of Proceedings (cont)                                         AR20130001478



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