IN THE CASE OF:	  

		BOARD DATE:	   7 July 2015 

		DOCKET NUMBER:  AR20140020307 


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, in effect, correction of his military records to show:

	a.  he was promoted to chief warrant officer three (CW3) prior to retiring in 1977;

	b.  his retirement adjusted to reflect this promotion and the benefits of such promotion; and

	c.  he was originally promoted to specialist five (SP5), pay grade E-5, on 
4 May 1959.

2.  The applicant states he was forced to retire because of his Reserve status as a warrant officer.  He was informed by a superior officer that he was on the list to be promoted to CW3, but because of his forced retirement, he was denied the benefits that the promotion would have provided him in retirement.  He also contends that he had been promoted to SP5/E-5 on 4 May 1959, but it was revoked because he had married a German citizen.

3.  The applicant provides copies of 

* Special Orders 90, 318th U.S. Army Security Agency (USASA) Battalion, dated 4 May 1959 (last page only)
* General Orders Number 4, USASA Battalion, dated 13 May 1959
* Orders S117-3, U.S. Army Military Personnel Center, dated 17 June 1977
* DD Form 214 (Report of Separation from Active Duty), effective 31 July 1977

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 19 June 1956, the applicant enlisted in the Regular Army.  He was released from active duty on 10 June 1959 in the rank of specialist four (SP4), pay grade E-4, temporary.

3.  On 12 April 1960, the applicant was ordered to active duty as a member of the U.S. Army Reserve (USAR).  He was discharged on 5 May 1960 for the purpose of an immediate enlistment in the Regular Army.

4.  The available records show the applicant's enlisted advancements/promotions in rank:

* 7 February 1958: specialist four (SP4), pay grade E-4, temporary
* 12 April 1960: SP4/E-4, permanent
* 19 December 1963: SP5/E-5, temporary
* Between March and December 1966: staff sergeant, pay grade E-6
* 19 February 1969: sergeant first class, pay grade E-7

5.  On 6 August 1973, the applicant was honorably discharged from the Regular Army for the purpose of accepting a warrant officer appointment.

6.  Letter Orders Number A-07-29, First U.S. Army, dated 25 July 1973, announced the applicant's order to active duty as a Reserve officer of the Army as a warrant officer one (WO1) with a date of rank of 7 August 1973.

7.  Special Orders Number 153 (Extract), 5th Signal Command, dated 4 August 1975, announced the applicant's promotion in the Army of the U.S. (AUS) to chief warrant officer two (CW2) with a date of rank of 7 August 1975.

8.  A letter from the 5th Signal Command, dated 16 November 1976, announced the applicant's promotion to CW2 in the U.S. Army Reserve (USAR) with a date of rank of 7 August 1976.

9.  In a letter from the U.S. Army Military Personnel Center, dated 21 April 1977, the applicant was notified of his release from active duty.  The letter indicated that he had been released from active duty in accordance with the maximum service policy.  His retirement eligibility date was 1 May 1977.  He had the option of applying for voluntary retirement to be effective no later than 1 August 1977.  He also had the option of transferring to an inactive status in the Reserve.

10.  On 11 May 1977, the applicant requested voluntary retirement with an effective date of 1 August 1977.  His DD Form 214 shows he was voluntarily retired in the rank and pay grade CW2, W-2 and had completed 20 years, 
3 months and 22 days of creditable active duty service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show:

	a.  he was promoted to chief warrant officer three (CW3) prior to his retiring in 1977;

	b.  his retirement adjusted to reflect this promotion; and the benefits of such promotion; and

	c.  he was originally promoted to specialist five (SP5), pay grade E-5, on 
4 May 1959.

2.  A review of the available evidence of record shows that the applicant was appointed to WO1 in 1973 and promoted to CW2, AUS in 1975.  He was promoted to CW2, USAR in 1976.  There is no available evidence showing that he had met the promotion board criteria for consideration and selection to CW3 in either the AUS or USAR.

3.  The available evidence of record further shows that the applicant was notified of his mandatory release from active duty to be effective no later than 1 August 1977.  In accordance with this notification, he elected to retire.  There is no apparent error or injustice in what the Army did in his case.
4.  With respect to the applicant's comment about his being promoted to SP5 in 1959 and it being immediately revoked, there is no relevant documentation in the available records to show what, if anything, was done improperly or caused him an injustice.  It shows that he was REFRAD on 10 June 1959 in the temporary rank of SP4, E-4.  When he reenlisted in the Regular Army on 12 April 1960, he entered in the permanent rank of SP4, E-4.

5.  In view of the above, there is no apparent error or injustice in what the Army did in the applicant's case.  Accordingly, his request should be denied.

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)                                         AR20140020307





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ABCMR Record of Proceedings (cont)                                         AR20140020307



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