RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00089
		INDEX CODE:  110.01

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The Board direct a special review board (SRB) or special selection board (SSB) to reconsider him for a two-year continuation of his mandatory separation date (MSD).

In his 18 Apr 02 response to the advisory opinion, applicant also requested that his MSD be recomputed without counting his time as a chief warrant officer.

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APPLICANT CONTENDS THAT:

The Air Reserve Personnel Center (ARPC) erroneously computed his MSD.  He was treated unfairly in the computation of his MSD by counting some of his warrant officer time, which is contrary to Title 10, U.S.C., Sec. 14706, resulting in him not receiving fair consideration by the continuation board.  The injustice was a result of his active duty US Marine Corps (USMC) and Army National Guard (ARNG) officer fitness/evaluation reports not being included in the records reviewed by the Board.

On or about 9 Sep 01, he was informed by his unit personnel officer that, in Jan 98, his mandatory separation date (MSD) was changed or established by the Air National Guard Readiness Center (ANGRC/MPPSO) to 1 Nov 01.  She suggested that he go through the ANG Judge Advocate (JA) to see if the change was correct, and if it was correct, were there any provisions for a waiver.

He explained to ARPC/JA that his Army National Guard warrant officer time was being counted as a part of his 28 years of commissioned service.  On 4 Oct 01, he received a copy of an email which explained that his warrant officer time from Nov 77 thru Feb 82 was not included in the calculation of his 28 years of service, but the time served from Oct 86 thru Jan 92 was included.

The bottom-line question was whether he completed 28 years of commissioned service, and must he be removed from the reserve active status list (RASL).  He explained that 10 USC 14706 entitled “Computation of Total Years of Service,” specifically provides that a reserve officer’s years of service includes all service as a commissioned officer “(other than service as a warrant officer).”  Regardless of how his total federal commissioned service date (TFCSD) is calculated, if his warrant officer time does not count, he only has approximately 25 years of commissioned service, not 28.

While ARPC was reviewing the computation of his MSD, the Adjutant General for New Mexico (TAG-NM) submitted a request for a two-year extension to his MSD.

Upon further consultation with his chain of command, he contacted ARPC.  They informed him that he did not receive fair consideration by the Board because he was missing some Marine Corps and ARNG fitness and evaluation reports which had not been included in his records that had been reviewed by the Board.  Based on this information, he is requesting that upon receipt of his fitness and evaluation reports he be considered by a special review board (SRB) or a special selective retention board (SSRB).

In support of the applicant’s appeal, he submitted a notarized personal statement.  His complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The available records reflect that the applicant is currently serving as a lieutenant colonel in the New Mexico Air National Guard.  He has an established MSD of 1 Sep 01.  

The applicant’s total federal commissioned service date (TFCSD) is 27 Aug 73, with a pay date of 9 May 69; his total years service date (TYSD) is 24 Jan 78.  As of 19 Apr 02, he had 29 years, 1 month and 10 days of satisfactory service towards retirement.

ARPC Form 0-178, Service Date Computation Worksheet (DOPMA), reflects that the applicant was credited with 18 years, 4 months and 27 days of total prior service at the time he entered the Air National Guard (ANG) on 24 Jan 92.  He served in the United States Marine Corps (USMC)/USMC Reserve from 9 May 69 to 31 Oct 77, and was credited with 8 years, 5 months and 22 days of service.  From 1 Nov 77 to 18 Feb 82, he served as a non-commissioned chief warrant officer (CW2) in the Army National Guard (ARNG); however, this period of service was not creditable toward his TFSCD.  During the period 19 Feb 82 to 30 Sep 86, he served as a commissioned officer (captain) in the ARNG and was credited with 4 years, 7 months and 12 days of service.  From 1 Oct 86 to 23 Jan 92, he served as a commissioned chief warrant officer (CW2) in the ARNG and was credited with 5 years, 3 months and 23 days of service.  

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AIR FORCE EVALUATION:

HQ ARPC/DPB reviewed the application and recommended denial.  They gave the following analysis of the case:

	a.  The applicant contends that HQ ARPC acted contrary to 10 USC 14706 (Computation of years of Service) in the computation of his years of service.  This section states, “…a reserve officer’s years of service include all service, other than constructive service, of the officer as a commissioned officer of any uniformed service (other than service as a warrant officer).”  The applicant believes that use of the time as a warrant officer should not count when computing time for establishing MSD.

	b.  10 USC 101 [Definitions] (b) [Personnel generally] “(1) the term ‘officer’ means a commissioned or warrant officer.  (2) The term ‘commissioned officer’ includes a commissioned warrant officer.  (3) The term ‘warrant officer’ means a person who holds a commission or warrant in a warrant officer grade.”  Based on these definitions, Section 14706 allows the use of commissioned warrant officer time, but disallows the use of time spent as a warrant officer without commission.  The applicant was both a commissioned warrant officer and a warrant officer without commission.

	c.  The applicant’s TFCSD was corrected by 1 month, 21 days, and adjusted from 18 Oct 73 to 27 Aug 73.  The original TFCSD established by an ANG memorandum dated 26 Dec 91 did not account for this commissioned time.  His TYSD was capped at 14 years in accordance with AFI 36-2005, Appointment in Commissioned Grades and Designation and Assignment in Professional Categories – Reserve of the Air Force and United States Air Force, Table 2.1, Rule 4, which is required to be eligible for appointment in the grade of major and remained the same date of 24 Jan 78.

	d.  The applicant’s original MSD of 1 Nov 01 was originally computed as 28 years from his TFCSD of 18 Oct 73.  His TFCSD was verified as 27 Aug 73.  Based on his new TFCSD, his MSD was recomputed as 1 Sep 01, and updated in the master computer file (MILPDS).

	e.  In regard to the missing performance reports from his officer Selection Record (OSR), they determined applicant became a member of an Air Reserve Component (ANG and/or USAFR) in 1992.  Due diligence on his part should have disclosed the missing documentation prior to the stated date of discovery (28 Dec 01), nearly 10 years after appointment.  Although there was information missing from his selection record, he only took action to make corrections after non-selection by a continuation board.  His MSD was corrected based on his recomputed TFCSD and is now 1 Sep 01.

A copy of the Air Force evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant respectfully disagreed with the analysis from ARPC.  Based on the misreading of 10 USC 14706, last year ARPC concluded that he had 28 years of commissioned service and that his MSD was 1 Nov 01.  After the filing of his BCMR, based upon the same misreading, ARPC concluded that his MSD should be 1 Sep 01.  However, in accordance with the exception contained in 14706, he does not have 28 years of commissioned service.  Excluding his time as a chief warrant officer (CW2) in the ARNG he has approximately 22 years of commissioned service (5 years on active duty in the USMC, 3 years in the inactive USMCR, 4 years as a captain in the ARNG and 10 years in the Air National Guard (ANG).

He says that the advisory opinion correctly quotes from the definitional section of 10 USC 101 and then jumps to the unsupported conclusion that 14706 “allows” the use of commissioned warrant officer time (in computing whether an officer has 28 years of commissioned service), but “disallows” the use of time spent as a warrant officer without commission.  Without analysis, the advisory opinion reads the “warrant officer” exception out of 14706, and fails to even mention 10 USC 12241 and the history of the distinction between the appointment of warrant officer by warrant and by commission.

Prior to 1985, 10 USC 571 thru 583 and 597 thru 598 (now 10 USC 12241) provided that reserve warrant officers and chief warrant officers of the Army were to be appointed by warrant.  In 1985, the statute was amended to provide that appointments in the reserve grade of CWO (pay grades CW2 thru CW5) are to be made by commission, but that appointments as a reserve warrant officer (pay grade W1) are still to be made by warrant.  Consistent with that reading of the Statute, none of his time as a chief warrant officer in the ARNG should be counted for purposes of computation of whether he has 28 years of service as a commissioned officer.

In respect to the unfair allegation that he has somehow been dilatory in obtaining documentation missing from his records, when he was transferred to the Air National Guard, he obtained federal recognition as a Major in the ANG and designation as a judge advocate.  Subsequently, his records appeared before a promotion board at ARPC and in Mar 98, he was promoted to the rank of lieutenant colonel.  He learned that his extension of his MSD was denied, and that is when he started looking into the matter, and found out that his OSR was missing performance evaluation reports when reviewed by the Board.  At no time was he ever told by ARPC that his military records were incomplete.

The Adjutant General for the New Mexico ANG submitted a letter on the applicant’s behalf.

Applicant’s complete response to the Air Force evaluation is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

HQ ARPC provided an additional evaluation noting that there initial advisory contained an inappropriate cite in 10 USC.  They provided the following analysis:

	a.  The applicant was appointed a Major, ANGUS effective 24 Jan 92.  At that time, he was credited with 18 years, 4 months, and 27 days of prior commissioned time.

	b.  His TFCSD of 27 Aug 73 was established by applying service credit to the date of ANGUS appointment.  At the time of his appointment, all officers in the grade of lieutenant colonel and below were allowed 28 years and 30 days of commissioned service in an active status.  For the applicant that date was computed as 1 Oct 01.

	c.  The applicant was promoted to Lieutenant Colonel effective 14 Jan 98 under the Reserve Officer Personnel Management Act (ROPMA).  His promotion eligibility was based on service credit and time spent as a major.  Once promoted under ROPMA, his MSD was recomputed, which requires removal from the reserve active status list (RASL) on the first day of the month after attaining 28 years of commissioned service.

When computing total year service, 10 USC 14706 states “…a reserve officer’s years of service include all service, other than constructive service, of the officer as a commissioned officer of any uniformed service (other than service as a warrant officer).”

The applicant was eligible for and met the ANGUS Lt Colonel Continuation Board, held 22 Oct 01.  A Lt Colonel with 28 years of service can be continued up to 30 years if selected by a continuation board.  The applicant was considered by this board, but non-selected, which required him to leave the RASL 1 Sep 01.

An option for the applicant to achieve retention on the RASL would be for HQ ARPC to recompute his creditable service without using any of the warrant officer time.  By removing all credit for warrant officer time, he would have 13 years, 1 month and 2 days of service credit and appointment as a captain [more that 7 years but less than 14 years service credit (10 USC 8359, AFR 35-3)].  His TFCSD would be 22 Dec 79, established by applying service credit to date of ANGUS appointment.  His promotion service date would be 24 Jan 86 and his TYSD would be 24 Jan 85.

They recommend two options: (a)  allow the applicant to continue to receive the constructive credit as a commissioned warrant officer and a commissioned officer and have that applied to his commissioned service date.  This would leave his original commission intact and his MSD of 1 Sep 01; or (b)  remove his 

commissioned warrant officer time from his service credit computation.  This would cause reappointment in the grade of captain, correction of DOR to major, and removal of the MSD.

The complete additional Air Force evaluation, with attachment, is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant states that he is not at all comfortable with the potential unforeseen and unintended consequences of retroactively revoking his promotion to Lieutenant Colonel.  He further disagrees with the legal analysis provided by ARPC.

First, there are two separate statutes, one concerning his appointment as a Major in 1992, and the other concerning computation of his total years of service as a commissioned officer for purposes of his MSD.  Second, the statute authorizing his appointment as a Major was repealed approximately three years after his appointment to Major, on the same day as the enactment of the statute stating that his service as a warrant officer should not be counted when computing his years of service for the purpose of Chapters 1407 and 1409 of 10 USC 14706.  Third, the warrant officer exception in 14706 only applies for the purposes of chapters 1407 and 1409.  It does not apply to chapter 1205, which contains 10 USC 12207, more or less the successor statute to 10 USC 8359.

He indicates that ARPC was correct when they counted his commissioned warrant officer time for purposes of his appointment as a Major.  However, given the substantive change in the relevant statutes in 1994, and given the clear language contained in 10 USC 101(b) and 10 USC 14706, ARPC is not correct in counting his commissioned warrant officer time for purposes of computing his MSD.  HQ ARPC’s reading of the relevant statutes makes exception in 14706 unnecessary, and does not make sense.

He concluded his response that the Board should direct HQ ARPC to recompute his MSD without counting his time as a commissioned warrant officer.  At the same time they should be directed not to recompute his prior commissioned service for purposes of his appointment as a Major in the ANG in 1992, and they should be directed not to revoke his promotion to Lieutenant Colonel and upon receipt of his USMC and ARNG officer fitness and evaluation reports should convene an SRB or SSRB to reconsider him for a two-year continuation of his MSD.

Applicant’s complete response to the additional Air Force evaluation is at Exhibit H.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAG reviewed the application with respect to how many years of total commissioned service the applicant has served, as computed under 10 USC 14706.  Section 14706(a)(1), Computation of total years of service, provides, “(a) For the purpose of this chapter and chapter 1407 of this title, a Reserve officer’s years of service include all service of the officer as a commissioned officer of a uniformed service other than the following: (1) Service as a warrant officer.”  The issue is whether applicant’s service as a commissioned warrant officer should be counted in computing the applicant’s MSD.  If it is, then applicant passed his MSD on 1 Oct 01 and he was properly separated for years of service.  If such service is not included, then the applicant’s MSD should be 1 May 07 and he should not have been separated for years of service.

Prior to 1986, 10 USC 555 provided that warrant officers of the Naval services were commissioned; however, warrant officers of the Army and Air Force were appointed by warrant.  Public Law 99-145 equalized the treatment of warrant officers of all of the services by offering commissions to all warrant officers, which was the intent of Congress.  

HQ ARPC/DPB’s interpretation of Section 14706 is based upon 1991 and 1993 policy letters.  These policy letters were based in part on provisions of the 1986 changes to law, which have since been repealed by ROPMA.  The policy guidance followed by HQ ARPC/DPB distinguishes between commissioned and noncommissioned warrant officer service, and includes commissioned warrant officer service in computing total years of commissioned service, but excludes non-commissioned warrant officer service.  Consequently, applicant’s 5 years and 4 months as a commissioned warrant officer were included in his MSD, whereas his 4 years and 4 months as a non-commissioned warrant officer were not.

While the policy guidance in the letters was a reasonable interpretation of the law, as it then existed, the statutory changes imposed by ROPMA in this area are explicit and leave no room for interpretation.  Section 14706 now clearly excludes all warrant officer service.  Title 10 defines the term “warrant officer” in section 101 as “…a person who holds a commission or warrant in a warrant officer grade.”  Thus, all service as a warrant officer, whether commissioned or not, is excluded when computing total years of commissioned service for purposes of establishing a Reserve officer’s MSD.

The Committee Report on ROPMA made it even clearer.  In their report, they explained, “Section 14706 of title 10, United States Code, as would be added by the bill, would provide a uniform method for the computation of the total years of service.  For the purpose of chapters 1407 and 1409 of title 10, a reserve officer’s years of commissioned service would include all commissioned service, other than constructive service or service as a commissioned warrant office [sic], performed by an officer in any of the seven uniformed services.”  ROPMA, Report of the Committee on Armed Services House of Representatives on H.R. 4481, September 23, 1992.

They also noted that the Air Force practice of including commissioned warrant officer service in computing entry grade credit upon an original appointment as a reserve officer appears to be in error.  10 USC 12207(a)(1) provides, “For the purpose of determining the grade and the rank within grade of a person receiving an original appointment as a Reserve commissioned officer (other than a commissioned warrant officer) in the Army, Navy, Air Force, or Marine Corps, the person shall be credited at the time of the appointment with any commissioned service (other than service as a commissioned warrant officer) performed before such appointment….”  This is also reflected in DODD 1312.3, Service Credit for Commissioned Officers and DODD 1310.1, Rank and Seniority of Commissioned Officers.

Since this provision of law did not change with ROPMA, it appears that the applicant was erroneously given entry grade credit for his commissioned warrant officer service upon his appointment as a Reserve officer.  If so, then applicant was appointed in the grade of major, when in fact he should have been appointed in the grade of captain.  As pointed out by HQ ARPC/DPB, this enabled the applicant to be considered for promotion to lieutenant colonel much earlier than he otherwise would have been.  

The clarification contained in the ROPMA provisions provided no grandfather clause; therefore, even if you assume our original computation of applicant’s MSD under ROPMA was correct, his MSD must now be recomputed in accordance with section 14706.  Thus, applicant, as well as all Air Force members with prior commissioned warrant officer service, who may have had such service incorrectly included in their MSD, should have their MSDs recomputed without the commissioned warrant officer service.

The complete Air Force evaluation is at Exhibit I.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed the HQ USAF/JAG opinion and agreed with almost everything.  He particularly agreed that all service as a warrant officer, whether commissioned or not, should be excluded when computing total years of commissioned service for purposes of establishing a Reserve officer’s MSD.  However, he respectfully disagreed with the conclusion that he was erroneously appointed in the grade of Major.

In looking at the three years he spent in law school (but excluding the years spent as a warrant officer in the ARNG) he was entitled to approximately 16 years of commissioned serviced credit when he was appointed as a Major in the ANG in 1992, therefore, his appointment was not erroneous.

He states in good faith he relied on the Air Force’s computation of his commissioned service credit in 1992 and accepted his appointment as a Major and subsequent promotion to lieutenant colonel. He has served his country faithfully and honorably during two wars.

He concludes that the Board should direct ARPC to recompute his MSD without counting any of his warrant officer time, and without counting any of his service credit for the time that he spent in law school.  On the other hand, while he does not ask to have his commissioned service credit recomputed for the purposes of his appointment as a Major in 1992, if they choose to recompute his commissioned service credit, they should be directed to give him three years of credit for the time spent in law school and not attempt to revoke or rescind his promotion to lieutenant colonel.

Applicant’s complete response to the additional Air Force evaluation is at Exhibit K.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After reviewing the opinion obtained from the Chief, General Law Division, it is apparent that the applicant was erroneously given entry grade credit for his commissioned warrant officer service in 1992.  Based on this erroneous credit, applicant’s grade at the time of his appointment in the Air National Guard was in error and he would not have been eligible for promotion to lieutenant colonel in 1998.  However, correcting applicant’s records by removing the erroneous entry grade credit would be detrimental, as he would be in debt for pay he received from 1992 to 2001 and his promotion to lieutenant colonel would be nullified.  Based on the circumstances surrounding this case and noting that the error made by the Air Force was of no fault of the applicant, we recommend that the applicant’s record be corrected to allow him to maintain his pay, promotion and that his mandatory separation date be adjusted in accordance with applicable laws and statutes.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	a.  At the time of his appointment in the Air National Guard and as a Reserve of the Air Force on 24 January 1992, his Total Active Federal Commissioned Service Date (TAFCSD) was 22 December 1979 rather than 27 August 1973; his Promotion Service Date (PSD) to the grade of Captain was 24 January 1986, and IAW Title 10, United States Code, Section 14706, his Mandatory Separation Date (MSD) was established as 1 May 2007 (maximum date based on age 60) rather than 1 October 2001.

	b.  He was promoted to the Reserve grade of major with a Promotion Service Date and Promotion Effective Date of 25 January 1992.

	c.  He was not discharged from the Air National Guard and transferred to the Air Force Reserve on 1 October 2001, but was continued in his Air National Guard assignment.

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The following members of the Board considered AFBCMR Docket Number 02-00089 in Executive Session on 6 February 2003, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 9 Jan 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ ARPC/DPB, dated 20 Mar 02, w/atchs.
     Exhibit D.  Letter, SAF/MRBR, dated 5 Apr 02.
     Exhibit E.  Letter, Applicant, dated 18 Apr 02, w/atchs.
     Exhibit F.  Letter, HQ ARPC/DPB, dated 4 Jun 02, w/atchs.
     Exhibit G.  Letter, SAF/MRBR, dated 7 Jun 02.
     Exhibit H.  Letter, Applicant, dated 2 Jul 02.
     Exhibit I.  Letter, HQ USAF/JAG, dated 23 Jul 02.
     Exhibit J.  Letter, AFBCMR, dated 6 Aug 02, w/atchs.
     Exhibit K.  Letter, Applicant, dated 9 Aug 02.