IN THE CASE OF: 

		BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20140005563 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration for correction of the applicant's records to show his retired rank/grade as Chief Warrant Officer Three (CW3)/W-3 instead of Chief Warrant Officer Two (CW2)/W-2.  

2.  Counsel states, in effect:

	a.  This request is based on the Army's violation of a Pretrial Agreement (PTA) following the applicant's court-martial.

	b.  The applicant had an outstanding career in the Army and performed valiantly as a combat veteran.  He was selected for promotion to the rank/grade of Chief Warrant Officer Four (CW4)/W-4 by a centralized promotion board.  However, due to the stress he faced in action and the extreme emotional abuse he suffered from an unfaithful and treacherous wife at home, he succumbed to the pressure and "checked out" for a time resulting in charges under the Uniform Code for Military Justice (UCMJ) for Desertion, Absence Without Leave (AWOL) and Possession of a Controlled Substance (Cocaine).

	c.  Because of his tragic family situation, the applicant knew that his reactions and emotions would not be fitting for a Soldier and an officer.  Before committing any misconduct he requested retirement, but the Army denied that request.  The Army's own desire to keep an asset beyond the date he wanted to stay, after 20 years of faithful service, led to the applicant's own undoing.  He could not handle the military life anymore.  He knew this and tried to leave, but was simply not allowed to.  Effectively, he was a victim of the cruelest type of stop-loss; his 20 years of service was not enough for him to be able to leave on peaceful terms.  He self-medicated and he escaped from reality, but reality caught up with him and he was held to account.

	d.  On 10 July 2007, the applicant was tried by a general court-martial (GCM).
Prior to pleading guilty before a military judge, he entered into a PTA with the general court-martial convening authority (GCMCA).  Under the PTA, the GCMCA agreed to "disapprove any adjudged punitive discharge and recommended approval of [then CW3 (applicant's name)] request for retirement."
The applicant, on the other hand, agreed on his part that he would request retirement after his sentence was announced or upon completion of adjudged confinement.  

   e.  Pursuant to the PTA, the applicant pled guilty to Charge I (one specification of desertion) and Charge II (two specifications of AWOL), and pled not guilty to Charge III (which alleged wrongful use of cocaine).  Charge III was dismissed by the government.  As part of the PTA, the applicant was sentenced to be confined for 12 months.  The military judge recommended the GCMCA disapprove any period of confinement.  Ultimately, the GCMCA granted clemency and reduced his final sentence from 12 months of confinement to 10 months of confinement, but approved his retirement as agreed upon in the PTA.
   
	f.  The applicant admitted guilt and served his time based on an agreement that was not upheld by the U.S. Army.  All personnel involved in the applicant's case thought he would be allowed to retire and be confined until his retirement was processed.  

	g.  The applicant submitted a voluntary request for retirement in the rank/grade of CW3/W-3 on 11 July 2007, the day after he was sentenced by the GCMCA.  The GCMCA signed the applicant's voluntary request for retirement, but it wasn't processed when it reached the Department of the Army.  The applicant was served with his initiation of elimination, dated November 2007.  This process forced the applicant to go through a retirement in lieu of elimination.
Therefore, he had to be processed through an Army Grade Determination Review Board (AGDRB).

	h.  Unaware of the terms of the PTA, the AGDRB recommended the reduction of the applicant's rank/grade in retirement to CW2/W-2, which was approved by the Acting Deputy Assistant Secretary of the Army (DASA) (Army Review Boards). 

	i.  The applicant's request to retire was granted, effective 31 March 2008.  However, his rank/grade in retirement was reduced to CW2/W-2 pursuant the action of the Acting DASA (Army Review Boards), who approved the recommendation of the AGDRB.  This action was taken without justification and against the plea agreement he had made.  If the applicant's voluntary retirement had gone through as promised and agreed, he would have retired as a CW3.  His character of service was honorable, but his narrative reason for separation was unacceptable conduct.  

3.  Counsel gives a synopsis of the applicant's Army career, his training, performance reviews, his selection to CW4/W-4, and overseas combat service.  

4.  Counsel contends the applicant's outstanding years of service as a CW3/W-3 and his selection for promotion to CW4/W-4 are the clearest indications that he served adequately in the rank/grade of CW3/W-3 and he should be restored to his last satisfactory and honorable grade, because it is clearly in the interest of justice to do so.

5.  Counsel provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 2008
* PTA
* Post-Trial Recommendations and GCMCA's Action
* Request for Retirement
* Department of the Army approval of retirement in the rank/grade of CW2/W-2
* Stipulation of Fact

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120011824 on 21 March 2013.

2.  Having prior enlisted service, the applicant was appointed as a Reserve warrant officer on 6 July 1995 with a concurrent call to active duty.  He served in a variety of assignments and duty stations and was promoted to CW3 on 1 May 2003.  His officer evaluation reports indicate his performance was commendable and his potential was unlimited.  He served in Afghanistan from 23 March 2004 to 23 March 2005.

3.  On 14 June 2007, the applicant rendered an offer to plead guilty in a pending court-martial to the Charges and Specifications, as stated in the Offer to Plead Guilty, and offer to abide by the other terms and conditions set forth in the Offer to Plead Guilty, provided the GCMCA will:  "disapprove any adjudged punitive discharge and recommend approval of my request for retirement."  Except as limited above, any other lawful punishments can be approved.  He agreed that after his sentence was announced, or upon the completion of any adjudged confinement, he would submit a voluntary request for retirement.  Once he had submitted his voluntary request for retirement and used up any accrued leave, he agreed to request voluntary excess leave until the convening authority took action in his case or his retirement was approved by Headquarters, Department of the Army (HQDA).  On 29 June 2007, the commanding general accepted the applicant's offer to plead guilty.

4.  The Stipulation of Fact, dated 27 June 2007, contains a synopsis of the applicant's career, his misconduct, and the extenuating circumstances that contributed to his misconduct.  It also shows that throughout the past 18 months, the applicant's supervisors and commanders had made substantial efforts to assist him with his personal problems, medical conditions, and substance abuse; including twice providing him with in-patient medical care.

5.  On 10 July 2007, the applicant was convicted pursuant to his pleas by a GCM of one specification of desertion and two specifications of being AWOL during the periods:  9 December 2005 to 2 February 2006, 24 February 2006 to 4 July 2006, and 7 November 2006 to 22 February 2007.  He was sentenced to be confined for 12 months.  The sentence was adjudged on 10 July 2007.

6.  On 11 July 2007, the applicant submitted a request for voluntary retirement and requested to be released from active duty and assignment on 31 October 2007 and placed on the retired list on 1 November 2007 or as soon thereafter as practicable.  In paragraph 11 of this request, the applicant stated "I understand the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 11, pertaining to determination of my retired grade.  Considering those provisions and after review of my records, I believe that I am entitled to retire in the grade of Chief Warrant Officer Three.  I understand that final determination of my retired grade will be made by HQDA and that I will be informed if I am not entitled to retire in the grade I have specified in this paragraph."

7.  On 26 October 2007, the Command Staff Judge Advocate (SJA), Fort Hood, TX, rendered a Post-Trial Recommendation for the GCMCA in order to obtain initial action for the applicant's court-martial.  The SJA noted the PTA and that the Judge had recommended that the GCMCA disapprove any period of confinement after the retirement is approved.  The SJA recommended that the GCMCA approve the sentence and order the sentence executed and noted that the accused will be credited with 84 days of confinement credit against the sentence of confinement.

8.  On 11 December 2007, the GCMCA approved only so much of the sentence as provided for confinement for 10 months confinement, and the sentence was executed.  The applicant was credited with 84 days of pretrial confinement against the sentence to confinement.  

9.  Orders Number 347-049, dated 13 December 2007, published by the U.S. Human Resources Command, Alexandria, VA, promoted him to CW4 with effective date and date of rank of 1 January 2008.  However, these orders were revoked by Order Number 011-002 issued by the same authority on 11 January 2008.

10.  On 1 February 2008, the Chief, Retirements and Separations, U.S. Army Human Resources Command, informed the applicant the Acting DASA (Army Review Boards) on 1 February 2008, approved the recommendation of the AGDRB that he be retired in the grade of CW2.  The effective date of his retirement was 31 March 2008 and he would be placed on the retired list on 1 April 2008.  He was given a Separation Program Designator Code of RNC (Unacceptable Conduct) with a character of service as honorable.

11.  His DD Form 214 shows he was retired from active duty on 31 March 2008 under the provisions of Army Regulation 600-8-24, paragraph 6-17d and paragraph 4-2b by reason of unacceptable conduct.  This form also shows his rank/grade as CW2/W-2 with an effective date of pay grade as 31 March 2008.  

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 (emphasis added)  warrant officer grade in which he served on active duty satisfactorily, as determined by the Secretary, for a period of more than 30 days.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant was promoted to CW3/W-3 on 1 May 2003.

2.  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.  

3.  By law, the applicant was erroneously considered by the AGDRB and retired in the rank/grade of CW2/W-2 with an effective date of pay grade of 31 March 2008 and he was placed on the retired list in that rank/grade on 1 April 2008.  

4.  In view of the foregoing, it would be appropriate to correct the applicant's record to show he was retired in the rank/grade of CW3/W-3 with an effective date of pay grade of 1 May 2003 on 31 March 2008 and placed on the retired list in that grade on 1 April 2008.  Additionally, he should be paid any back retirement pay to which he is entitled as a result of this correction.

BOARD VOTE:

____X___  ___X___  ___X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20120011824, dated 21 March 2013.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending his DD Form 214 to show he was retired in the rank/grade of CW3/W-3 with an effective date of pay grade of 1 May 2003 on 31 March 2008 and showing he was placed on the retired list in that grade on 1 April 2008; and


	b.  paying him any back retirement pay to which he is entitled as a result of this correction.



      _______ _   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)                                         AR20140005563





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ABCMR Record of Proceedings (cont)                                         AR20140005563



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