IN THE CASE OF:	  

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140010275 


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 adjustment of his date of rank (DOR) to chief warrant officer four (CW4) to 3 August 2009 vice 25 November 2010.

2.  He states:

* His DOR to CW4 of 3 August 2009 was adjusted to 25 November 2010 in violation of Title 10 and Army Regulations
* He served in the U.S. Army Reserve (USAR) on an active status from 
3 August 2009 until he entered active duty (AD) in 2011
* When he entered AD his DOR was determined to be 3 August 2009, but was later adjusted to 25 November 2010
* He was on an active status as a member of the Selected Reserve of the Ready Reserve since the date of his last promotion
* The U.S. Army Human Resources Command (HRC) assertion that his adjustment was justified by Title 10, U.S. Code, section 572 does not apply because his AD appointment was not his original appointment

3.  He provides:

* Orders 03-1-A-005, dated 10 January 2011
* Military Personnel Message 10-199
* Orders A-02-103189, dated 14 February 2011
* Inspector General (IG) letters, dated 31 March 2014 and 15 April 2014
* Excerpts from Army Regulation 600-8-29 (Officer Promotions) 
* Excerpts from Title 10, U.S. Code
* ARPC Forms 249-E (Chronological Statement of Retirement Points), dated 4 April 2012 and 9 January 2014
* Orders 121-012, dated 30 April 2012
* Memorandum, Subject:  Audit of Total Operational Flying Duty Credit (TOFDC), dated 10 April 2013
* Emails
* DA Form 1559 (IG Action Request), dated 8 January 2014
* Retirement Points Accounting System (RPAS) Information
* Memorandum, Subject:  Appointment as a Reserve Warrant Officer of the Army Under Section 12201 and 122241, Title 10, U.S. Code
* DA Forms 71 (Oath of Office - Military Personnel), dated 3 August 1995 and 20 August 1998
* DA Form 78-R (Recommendation for Promotion to First Lieutenant/CW2), dated 7 July 1997
* Orders R-12-207632, dated 13 December 2002
* Memorandum, Subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, dated 28 August 2003
* Orders 04-127-00012, dated 6 May 2004
* Orders D01604, dated 4 June 2004
* Orders C-06-721295, dated 29 June 2007
* Orders 07-284-00015, dated 11 October 2007
* Orders 07-284-00021, dated 11 October 2007
* Orders 07-284-00023, dated 11 October 2007
* Orders 1A-07-132-107, dated 12 May 2007
* Orders 1A-07-132-107 (A1), dated 10 October 2007
* Orders B-07-905395, dated 27 July 2009

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's adjusted DOR of 25 November 2010 be voided and correct his military personnel record to reflect a DOR of 3 August 2009.

2.  Counsel states:  

* The applicant was originally appointed as a warrant officer one (WO1) on 3 August 1995
* He remained on AD until 22 December 2002, when he was released to accept an Active Guard Reserve (AGR) appointment on 12 January 2003
* After being released from AGR status in May 2007, he was assigned to a Troop Program Unit
* In October 2007, he was mobilized and reported for duty in Iraq
* He was released from AD in June 2008 and returned to "active status" as a Reserve member
* On 3 August 2009, he was promoted to CW4
* On 10 January 2011, he was appointed in the Regular Army (RA) 
* In April 2013, HRC conducted an audit of his TOFDC and determined that he was in active flight status for each of the years 2009 to 2012
* Counsel explains that the applicant contacted HRC on several occasions concerning his DOR to no avail
* The applicant filed a complaint with the IG and the matter was referred to the Assistant IG
* Counsel argues the Assistant IG erroneously interpreted "active status" as being synonymous with "active service" 

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the RA on 28 March 1995 and he was subsequently accepted into the Warrant Officer Flight Program.  On 3 August 1995, he was appointed as a Reserve WO1.  

2.  On 20 September 1996, he completed his Warrant Officer Basic Course.  He successfully attended and completed the Aviation Maintenance Manager Course from 30 October 1996 to 22 January 1997. 

3.  On 3 August 1997, he was promoted to CW2.  

4.  On 22 December 2002, he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement).

5.  On 12 January 2003, he was ordered to active duty in an AGR status in the rank of CW2.

6.  On 2 August 2003, he was promoted to CW3.  

7.  On 11 May 2007, he was honorably released from active duty.

8.  On 3 August 2009, he was promoted to CW4 in the USAR.

9.  His ARPC Form 249-E shows during the retirement year beginning on 
3 August 2009 and ending on 2 August 2010 he earned 29 active duty points and from 3 August 2010 to 30 March 2011 he earned 71 active duty points for a total of 100 active duty points.
10.  On 10 January 2011, he was appointed in the RA as a CW4.

11.  Orders A-02-103189, dated 14 February 2011, ordered the applicant to AD in the grade of rank of CW4.  The order stated that officers recalled to AD must request a DOR determination through their servicing Personnel Service Branch (PSB) upon entry to AD.  

12.  Orders Number 121-012, issued by HRC, dated 30 April 2012, promoted the applicant to CW4 with an adjusted DOR of 25 November 2010.

13.  On 8 January 2014, the applicant completed an IG Action Request.  He requested a determination of what regulation and authority HRC used to alter his active DOR.  Specifically, he wanted to know how HRC cited Army Regulation 600-8-29, paragraph 1-46(2) to change the DOR of a Reserve officer when placed on the Active Duty List (ADL).  He explained he was ordered to active duty in Turkey for 2 years.  While in Turkey, HRC adjusted his DOR from 
3 August 2009 to 25 November 2010.  A copy of the IG response to this request is not contained in his available file or the documents he provided.

14.  However, on 31 March 2014, the IG responded to the applicant's request on 19 March 2014, concerning his active DOR. 

   a.  The IG quoted Army Regulation 600-8-29, chapter 1-46c(1) and Title 10, U.S. Code, chapter 33A, section 572 and stated that the applicant's active DOR was calculated using his current DOR of 25 November 2010 and his active duty time credited to him on the ARPC 249-E.  The IG said those active duty days were backdated from the date he was placed on the ADL, 5 March 2011, while he served as a CW4.

   b.  The IG further stated that this action is taken for every Reserve officer that is accessed from Reserve status to active duty status.  She explained that when an active DOR is calculated for an officer who enters active duty, seniority is reduced based on the differences of the components and the amount of active duty time in that grade.  Those Reserve officers must be competitive with active duty officers.  The absence of active duty evaluations for the period in question may determine that the officer is non-selected for promotions, so the active DOR is beneficial for those officers.  As an officer, when identified as a two-time pass over, he will be processed for separation, not promotion.




15.  On 15 April 2014, the IG again responded to the applicant's request concerning his active DOR.  The IG clarified information in Title 10, U.S. Code section 101 as it pertained to the difference between the phrases active service and active status.  

16.  Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the ADL.  

   a.  Paragraph 1-41a states that other than RA commissioned officers in a grade above 2LT who were not given entry grade credit at the time of their most recent original appointment will be placed on the ADL in their current grade and will have an active DOR that precedes the date of placement on the ADL by a period equal to the time served in an active status in their current grade. 

   b.  Paragraph 1-46c(1) states that other than RA WOs in a grade above WO1 who did not receive entry grade credit at the time of their most recent original appointment will be placed on the ADL in their current grade and will have an active DOR that precedes the date of placement on the ADL by a period equal to the period they spent in an active status in their current grade. 

17.  Title 10, U.S. Code, section 101, provides definitions relating to duty status as stated as follows:

   a.  The term "active duty" means full-time duty in the active military service of the United States.  Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.  Such term does not include full-time National Guard duty. 

   b.  The term "active duty for a period of more than 30 days" means active duty under a call or order that does not specify a period of 30 days or less. 

   c.  The term "active service" means service on active duty or full-time National Guard duty. 

   d.  The term "active status" means the status of a member of a reserve component who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve. 

   e.  The term "original" with respect to the appointment of a member of the armed forces in a regular or reserve component, refers to that member’s most recent appointment in that component that is neither a promotion nor a demotion.
18.  Title 10, U.S. Code, section 572, provides for the original appointment and service credit for warrant officers.  It states that for the purposes of promotion, persons originally appointed in regular or reserve warrant officer grades shall be credited with such service as the Secretary concerned may prescribe.  However, such a person may not be credited with a period of service greater than the period of active service performed in the grade, or pay grade corresponding to the grade, in which so appointed, or in any higher grade or pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was originally promoted to CW4 in the USAR on 3 August 2009.  However, on 10 January 2011, he was appointed in the RA as a CW4.  

2.  He was ordered to AD in the grade of rank of CW4 and he entered active duty on 5 March 2011.  On 30 April 2012, orders were issued from HRC that adjusted his DOR to 25 November 2010.  

3.  The evidence of record further shows that the applicant sought assistance through the IG for adjustment of his DOR.  The IG stated that the applicant was placed on the ADL on 5 March 2011 while he served as a CW4.  His DOR was established as follows:

	   2011  03  05  date placed on ADL
	-            03  10  active duty points (ARPC Form 249-E -100 days)
	=  2011  11  25

4.  The applicant's argument that HRC's assertion that his adjustment was justified by Title 10, U.S. Code, section 572 does not apply because his AD appointment was not his original appointment is not supported by the available evidence.  As stated in by Title 10, U.S. Code, section 101, an original appointment refers to that member's most recent appointment in that component that is neither a promotion nor a demotion, and section 572 states a person may not be credited with a period of service greater than the period of active service performed in the grade.  There is no evidence and neither the applicant nor his counsel has provided any to show he performed active service as a CW4 which would justify further adjustment of his date of rank.  

5.  Further, Army Regulation 600-8-29, paragraph 1-46c(1) reiterates the information contained in Title 10, U.S. Code, section 572.  It states the applicant will be placed on the ADL in their current grade and will have an active DOR that precedes the date of placement on the ADL by a period equal to the period they spent in an "active status" in their current grade.  The applicant and his counsel argue that the applicant was in an "active status."  However, Title 10, U.S. Code requires the appointed officer to have performed "active service" in the higher grade.  Even though there appears to be a disconnect between Title 10, U.S Code and Army Regulation 600-8-29, Title 10 is a law and as such takes precedence over the regulation.  

6.  There is no evidence, and the applicant or his counsel did not provide any, to show that his DOR should have been adjusted to 3 August 2009.  Therefore, in the absence of any documentation that shows he performed active service as a CW4 for more than 3 months and 10 days, the presumption of regularity must be applied.  Therefore, the applicant is not entitled to have his DOR adjusted to
3 August 2009.

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)                                         AR20140010275





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ABCMR Record of Proceedings (cont)                                         AR20140010275



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