IN THE CASE OF:	  

		BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130012805 


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 retirement in the rank/grade of lieutenant colonel (LTC) vice chief warrant officer two (CW2).

2.  The applicant states:

* He held the rank of LTC from 14 October 2000 to 9 May 2009, during which he was on active duty for at least 36 months
* He accepted a warrant officer position as a condition of being hired in the Active Guard Reserve (AGR) program with the Texas Army National Guard (TXARNG)
* He qualifies for advancement on the retired list to the highest grade he satisfactorily held while on active duty, under the provisions of Title 10, U.S. Code (USC), section 3964.

3.  The applicant provides:

* State promotion order to LTC
* National Guard Bureau (NGB) Special Orders 20 AR (promotion to LTC)
* DD Forms 214 (Certificate of Release or Discharge from Active Duty), ending on 7 January 2007 and 5 July 2009
* NGB Form 23B (ARNG Retirement Points History Statement)
* Orders 199-1048 (AGR)



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was initially appointed as a Regular Army commissioned officer an executed an oath of office on 27 May 1981.  

2.  He was honorably discharged as a captain under the Fiscal Year 1992 Voluntary Separation Incentive Program on 31 August 1992.  His DD Form 214 for this period of service shows he completed 11 years, 3 months, and 5 days of active service.  

3.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 4 October 1992 with an effective date of 1 September 1992. 

4.  He was appointed as a commissioned officer of the TXARNG and executed an oath of office on 18 February 1993.  He served in a variety of assignments in the ARNG and on active duty.  He was promoted to major on 16 October 1993.

5.  He entered active duty on 11 January 1999 and he was honorably released from active duty on 29 January 2000.  His DD Form 214 for this period of service shows he completed 1 year and 19 days of active service.  

6.  He was promoted to LTC in the TXARNG and extended Federal recognition by Special Orders 20 AR, effective 24 January 2001. 

7.  On 18 October 2001, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

8.  He entered active duty on 11 July 2005 and he subsequently served in Kosovo.  He was honorably released from active duty on 7 January 2007.  His DD Form 214 for this period of service shows he completed 1 year, 5 months, and 27 days of active service.  

9.  On 25 March 2009, he requested an age waiver to allow him to be appointed as a Military Intelligence warrant officer in the ARNG.  He indicated he had completed 17 years of active service.  His waiver was approved. 

10.  He was honorably discharged from the ARNG on 10 May 2009 by authority of Orders 132-1006 issued by the TXARNG on 12 May 2009.  

11.  He was appointed as a warrant officer of the TXARNG and executed an oath office on 11 May 2009.

12.  He entered active duty on 6 July 2009 and successfully completed the Warrant Officer Basic Course.  He was honorably released from active duty on 31 July 2009.  His DD Form 214 for this period of service shows he completed 25 days of active service.  

13.  He was promoted to CW2 in the TXARNG on 31 July 2009.  He entered active duty on 1 August 2009 and he retired on 30 September 2013 by reason of sufficient service for retirement.  

14.  His retirement DD Form 214 shows he completed 4 years and 2 months of active service and he had 17 years, 6 months, and 12 days of prior active service, for a total of 21 years, 8 months, and 12 days of total active service.  His DD Form 214 also shows in:

* Item 4a (Grade, Rate or Rank) and 4b (Pay Grade), CW2 and W02
* Item 12i (Effective Date of Pay Grade), 18 September 2009

15.  On 11 October 2013, the TXARNG published Orders 284-007 separating him from the ARNG and transferring him to the Retired Reserve in the rank of CW2 effective 1 October 2013.  His NGB Form 22 (Report of Separation and Record of Service) shows he completed 32 years, 4 months, and 5 days of total service for retired pay. 

16.  On 30 August 2013, the Army Grade Determination Review Board (AGDRB) considered his request for advancement on the retired list.  However, the AGDRB returned his case without action and he was advised that board did not have jurisdiction in his case.  

17.  Title 10, U.S.C, section 3964 contains the legal authority for the advancement of enlisted members and warrant officers on the Retired List.  It provides that an enlisted member or a warrant officer who is retired with less than 30 years of active service is entitled, when their active service plus their service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily as determined by the Secretary of the Army. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be advanced to LTC on the retired list. 

2.  The evidence of record shows he previously served in the ARNG and on active duty as a commissioned officer.  He satisfactorily held the rank of LTC for several years and was honorably discharged from the ARNG on 10 May 2009 by authority of Orders 132-1006 issued by the TXARNG on 12 May 2009.  

3.  He was subsequently appointed in the ARNG as a warrant officer and was later promoted to CW2.  He was ultimately retired by reason of sufficient active duty service for retirement on 30 September 2013.  He completed 21 years, 8 months, and 12 days of total active service.  He was placed on the Retired List at that time as a CW2 because that was the rank he held at the time of retirement.

4.  By law and regulation, in order to be placed on the Retired List at the highest grade held an enlisted Soldier or a warrant officer must have 30 years of active service at the time of retirement.  The law allows for members to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active duty service and time on the Retired List equals 30 years.  

5.  He retired on 30 September 2013.  He completed 21 years, 8 months, and 12 days of total active service at that time.  Therefore, he has not met the legal requirement for advancement on the retired list and as such his request cannot be granted at this time.  As he gets close to the 30-year point, he should apply directly to the U.S. Army Human Resources Command for advancement on the Retired List in the desired grade. 

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)                                         AR20130012805



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ABCMR Record of Proceedings (cont)                                         AR20130012805



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