BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20140018687 


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 correction of his record to show that he was promoted to the rank/pay grade of lieutenant colonel (LTC)/O-5 while serving on active duty and was subsequently advanced to that rank/pay grade on the Retired List rather than that of major (MAJ)/O-4.

2.  The applicant states he believes it was an injustice for him to be retired in the rank/pay grade of MAJ/O-4, the highest grade that he held while on active duty in the Regular Army (RA) instead of being retired in the rank/pay grade of LTC/O-5 which would recompense him from the negative action of random selection for reduction of forces without fault on his part.  His pursuit of further advancement was squelched by such action against him.

3.  The applicant further states he accepted a commission in the RA as a second lieutenant (2LT)/O-1 in June 1952 with provisions of the regulations to guarantee him to serve twenty to thirty years to retirement.  Congressional action in 1967 which changed the provisions of the Army to reduce its forces to include random selection of current RA officers on active duty caused him to resign against his will and forfeit further advancement.  He served exemplarily and progressively advanced with commendation to the rank/pay grade of MAJ/O-4.  He received bronze star medals for meritorious service, pending a speedy advancement to the rank/pay grade of LTC/O-5.

4.  In the year 1967, the Congress of the United States determined a need to reduce the number of Army officers, changing applicable laws regarding the "Reduction in Force" (RIF) and thereby negating his twenty to thirty-year contract without appropriating considerable benefit to him.  He was so dedicated to the Army at that time that he was unresisting to the action of undesirably resigning his commission as an RA officer.  At the time, the applicant was assigned as the Headquarters Commandant of the Fort Bragg, NC Training Center.  When his commanding general made the official announcement of his status change, the general awarded him a Commendation Medal with tears in his eyes and stated that he could not understand the reason for the Army's random selection for termination of his officer status.

5.  The applicant truly believes that, after his acceptance of appointment to the rank/pay grade of chief warrant officer two (CW2)/W-2 and the pattern of his speedy advancement to the rank/pay grade of CW4/W-4, had he been retained on active duty as an RA officer in the rank/pay grade of MAJ/O-4, he would have advanced to at least the rank/pay grade of LTC/O-5 in a relatively short time and been able to retire in that grade.  He strongly supports the concept of the Army making provisions to grandfather or exempt all individuals from changed laws and regulations that negatively and severely affect their status or disposition.  He also believes that several such actions have been made by the U.S. Government and the Armed Forces to recompense groups and individuals for changes to laws that similarly affected them negatively.

6.  The applicant provides:

* a self-authored plea to Congress and the Department of the Army
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 214 (Certificate of Release or Discharge From Active Duty) for the period ending 31 December 1981

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 15 June 1952, the applicant was appointed as a 2LT/O-1 in the RA.  He served in a variety of assignments and was promoted to first lieutenant (1LT)/O-2 and captain (CPT)/O-3, respectively.

3.  On 7 September 1965, he was promoted to MAJ/O-4.

4.  Headquarters, Department of the Army, Special Orders Number 179, dated 12 September 1967, shows the applicant's resignation was accepted effective 31 October 1967, on which date any temporary commissions held would be vacated.  His record is void of the specific facts and circumstances pertaining to the catalyst for his resignation.

5.  His DD Form 214 for the period ending 31 October 1967 shows he was honorably discharged in the rank/pay grade of MAJ/O-4 after a total 15 years, 2 months, and 10 days of active duty service as a commissioned officer.  His record is void of any indication that he was either promoted to or selected for promotion to LTC/O-5 during this period of service.

6.  On 1 November 1967, the applicant received a direct appointment as a Reserve warrant officer of the Army in the rank/pay grade of CW2/W-2 with concurrent orders to active duty.  He performed a variety of assignments and was promoted to chief warrant officer three (CW3)/W-3.

7.  Headquarters, Department of the Army Special Orders Number 72, dated 14 April 1975, show the applicant was promoted in the Army of the United States from CW3 to CW4 effective 1 May 1975.

8.  Department of the Army, Office of The Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, letter, Subject: Promotion as a Reserve Warrant Officer of the Army, dated 16 October 1979, shows the applicant was promoted in the U.S. Army Reserve (USAR) from CW3 to CW4 effective 1 November 1979.

9.  Department of the Army, U.S. Army Military Personnel Center, Alexandria, VA, Orders S161-1, dated 19 August 1981, show the applicant was retired from active service and released from assignment and duty effective 31 December 1981, and, on the date following release, placed on the retired list in the retired rank/pay grade of CW4/W-4.




10.  His record contains a DA Form 3713 (Data for Retired Pay), dated 19 August 1981, which shows the following pertinent information:

* Active Duty Grade:  CW4
* Retired Grade:  CW4
* Highest Grade Attained:  MAJ
* Permanent Grade:  CW4
* Retired Pay Grade:  CW4
* Date Placed on Retired List:  1 January 1982
* Component of Retired Pay Grade
* Statute Authorizing Retirement:  1293
* Statute Authorizing Retired Grade:  1371

11.  His DD Form 214 for the period ending 31 December 1981 shows he was honorably retired in the rank/pay grade of CW4/W-4 after an additional 14 years and 2 months of active duty service as a warrant officer.  

12.  In June 1982, the applicant initiated a request to be advanced on the Retired List to MAJ/O-4 because it was the highest grade he held during his active duty tenure.

13.  On 16 September 1982, the applicant was notified by the Director, Retired Activities that he had been advanced on the Retired List effective 22 August 1982 to the rank of MAJ, the highest active duty grade he satisfactorily held.

14.  His record contains a DA Form 3713, dated 16 September 1982, which shows the following pertinent information regarding a change in his retired status:

* Retired Grade:  W-4
* Retired Pay Grade:  O-4
* Statute Authorizing Retirement:  3964
* Statute Authorizing Retired Grade:  3992

15.  The applicant provides self-authored letter, addressed to the Secretary of the Army, wherein he submits a plea to Congress and the Department of the Army in lieu of appealing to pertinent regulations.  His appeal is as follows:

   a.  As a former RA officer and former Reserve warrant officer, he respectfully requests a waiver of the time and limitations pertinent to Army Regulations and procedures for pleas and appeals due to the passage of more than forty seven years since his involuntary and undesirable resignation from the RA.  He hereby pleas/appeals to the Congress of the United States and Artillery Branch, Department of the Army, Washington, DC for favorable reconsideration to retroactively exempt him from the effects of Congressional action in 1967 which changed provisions of the Army to reduce its forces to include current RA officers on active duty causing him to resign against his will forfeiting further advancement and for reconsideration to recompense him by non-retroactively upgrading his designated retirement rank/pay grade from MAJ/O-4 to LTC/O-5.

   b.  His pursuit of excellence has prevailed from early childhood; he was reading and writing when he started school at age five.  At age nine in the sixth grade, he was selected to be "Santa Claus" in the Christmas Play, memorizing seven pages of play script.  In high school, he was elected to be the class president.  During high school, he was selected among his peers to attend West Virginia Boy's State.  During Boy's State, he learned government and leadership skills and was elected "Governor."  Upon graduation from high school, he was designated "the one most likely to succeed in music" and was awarded a Music College Scholarship.

   c.  His first encounter with the Army was through the Reserve Officers' Training Corps at West Virginia State College, Institute, WV, where he was appointed to the position of Adjutant of the Corps.  Upon graduation from college, being in the academic top third of his class, he was offered an RA commission as opposed to a Reserve Commission.  He accepted a commission in the RA as a 2LT in June 1952 with provisions of the regulations to guarantee him to serve twenty to thirty years to retirement.

   d.  During the fifteen years of RA service, he learned many target observation skills, communication skills, surveying skills, and many others.  He was often placed in a leadership position grade being one grade higher than his own.  As a lieutenant, he was designated Security Officer of the Guard to transport Honest John nuclear components to Germany upon unit deployment.  In artillery units, he pioneered the Honest John and Lacrosse missile artillery, and as a CPT/O-3, became the only qualified officer at Fort Sill, OK to fill a MAJ/O-4 position as Chief of the Lacrosse Division Missile Systems Evaluation Group.  He concluded that tenure with commendation for meritorious service.

   e.  With deployment to Saudi Arabia as a CPT/O-3, he replaced a MAJ/O-4 as the Supply and Liaison Officer, United States Military Training Mission to Saudi Arabia.  This position also included being the controller of a three-airplane airline comprised of Army, Air Force, and Navy personnel that made scheduled personnel and supply flights to desert stations.  He concluded that tenure with commendation for meritorious service.

   f.  He served exemplarily and progressively advanced with commendation to the rank/pay grade MAJ/O-4, receiving commendation and bronze star medals for meritorious service, pending a speedy advancement to the rank/pay grade of LTC/O-5.  In 1967, the Congress of the United States determined a need to reduce the number of Army officers, by changing applicable laws regarding the RIF and thereby negating his twenty to thirty year contract without appropriating considerable benefit to him.  He was so dedicated to the Army at that time that he was unresisting to the action of undesirably resigning his commission as an RA officer.

   g.  At the time, he was assigned as the Headquarters Commandant of the Fort Bragg, NC Training Center.  When his commanding general made the official announcement of his status change, the general awarded him a Commendation Medal with tears in his eyes and stated that he could not understand the reason for the Army's random selection for termination of his officer status.

   h.  The applicant truly believes that, after his acceptance of appointment to the rank/pay grade of CW2/W-2 and the pattern of his speedy advancement to the rank/pay grade of CW4/W-4, had he been retained on active duty as an RA officer in the rank/pay grade of MAJ/O-4, he would have advanced to at least the rank/pay grade of LTC/O-5 in a relatively short time and been able to retire in that grade. 

   i.  He has sorely pondered his untimely circumstances over the years since his retirement and strongly supports the concept of the Army making provisions to grandfather or exempt all individuals from changed laws and regulations that negatively and severely affect their status or disposition.  He also believes that several such actions have been made by the U.S. Government and the Armed Forces to recompense groups and individuals for changes to laws that similarly affected them negatively.  He is extremely grateful for having had the opportunity to serve the greatest country in the world.  He has not many years left to enjoy the much treasured retirement from military service.  He will respect the final decision of his plea.  God bless the United States of America.

16.  A review of the U.S. Army Center of Military History internet website revealed the Vietnam Era RIF was not implemented until 1973 in conjunction with the withdrawal of U.S. troops from Vietnam and the transition to an all-volunteer force.

17.  Title 10, U.S. Code for the Armed Forces, in effect at the time, provided the following legal statutes for the subsections indicated:
	a.  Under subsection 1293:  The Secretary concerned may, upon the warrant officer’s request, retire a warrant officer of any armed force under his jurisdiction who has at least 20 years of active service that could be credited to him under section 511 of the Career Compensation Act of 1949.

	b.  Under subsection 1371:  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.

	c.  Under subsection 3964:  Each retired member of the Army who is a member of a group listed below who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.  This section applies to:  

		(1)  warrant officers of the Army;

		(2)  enlisted members of the Regular Army; and

		(3)  Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty).

	d.  Under subsection 3992:  An enlisted member or warrant officer of the Army who is advanced on the Retired List under section 3964 of this title is entitled to recompute his retired pay in accordance with this section.

		(1)  Formula.  The monthly retired pay of a member entitled to recompute that pay under this section is computed by multiplying:

* the member's retired pay base (as computed under section 1406(c) or 1407 of this title), by
* the retired pay multiplier prescribed in section 1409 of this title for the number of years credited to the member under section 1405 of this title

		(2)  Rounding to the next lower dollar.  The amount computed under the subsection above, if not a multiple of $1, shall be rounded to the next lower multiple of $1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for correction of his record to show that he was promoted to the rank/pay grade of LTC/O-5 while serving on active duty and was subsequently advanced to that rank/pay grade on the Retired List rather than the rank of MAJ/O-4 was carefully considered.

2.  The evidence clearly shows the applicant was appointed as a commissioned officer in the RA and ascended through the officer ranks until he was ultimately promoted to the rank/pay grade of MAJ/O-4 prior to being honorably discharged as a result of resigning his commission on 31 October 1967.  His record is void of any indication that he was selected for promotion to LTC/O-5 prior to his discharge.

3.  His record is void of the specific facts and circumstances pertaining to the catalyst for his resignation.  However, a review of the U.S. Army Center of Military History internet website revealed the Vietnam Era RIF was not implemented until 1973 in conjunction with the withdrawal of U.S. troops from Vietnam and the transition to an all-volunteer force.

4.  The day after his discharge, he received a direct appointment as a Reserve warrant officer of the Army in the rank/pay grade of CW2/W-2.  He ascended through the warrant officer ranks until he was ultimately promoted to CW4/W-4.  His record is void of any indication that he was selected for promotion to LTC/O-5 prior to his retirement.

5.  He was honorably retired in the rank/pay grade of CW4/W-4 on 31 December 1981.

6.  Once his active service plus his service on the Retired List totaled 30 years, he submitted a request to be advanced on the Retired List to MAJ/O-4 because it was the highest grade in which he served on active duty satisfactorily.  His request was approved and he was advanced on the Retired list accordingly.

7.  The applicant opines that he would have been promoted to LTC/O-5 had he not been required to resign.  However, there is no indication that he was considered and selected for promotion to LTC/O-5 at any time during his period of service.  Therefore, his opinion is based purely on his personal speculation and as such is unwarranted.
8.  The applicant has not demonstrated the existence of any error or injustice in his military records.  Therefore, it would be inappropriate to grant his requested relief.

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)                                         AR20140018687



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ABCMR Record of Proceedings (cont)                                         AR20140018687



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