PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           22 September 1999                   
	DOCKET NUMBER:   AR1999021171

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the effective date of his retirement be corrected.

3.  The applicant states that in October 1998, the Army Reserve Personnel Command (AR-PERSCOM) sent him a letter stating he was to be removed from the active Reserve for non-selection for promotion.  His mandatory removal date was no later than the first day of the seventh month following the President’s approval of the board, specified in the letter as 1 March 1999.  He requested transfer to the Retired Reserve effective 1 March 1999.  However, his retirement orders have an effective date of 16 November 1998.  He has written numerous letters to AR-PERSCOM to correct this erroneous date but has rarely received a response.  While awaiting correction of this mistake, he continued to drill with his unit.  Supporting evidence is as listed on the attachment to the DD Form 149.

4.  The applicant’s military records show that after having had prior enlisted service in the active Army and the Reserve Components, he was appointed a warrant officer in the U. S. Army Reserve (USAR) on 19 August 1986.

5.  On 28 April 1998, the USAR Chief Warrant Officer 3/4/5 promotion board convened.  The board reported its findings on 17 August 1998 and the applicant had not been selected for promotion.  This was his second non-selection.

6. On 29 September 1998, AR-PERSCOM sent the applicant a letter notifying him of his non-selection.  The front side of the letter states he must be released from an active status no later than 16 November 1998, 90 days after the selection board reports its findings.  The reverse of the letter contained the reserve status statement and election of options.  The sentence “Your removal is mandatory no later than the first day of the seventh month following the President’s approval of the board” is highlighted.  He elected the option of transfer to the Retired Reserve effective 1 March 1999 (the first day of the 7th month following his second non-selection).

7.  The Warrant Officer Career Center’s Internet website, reference the 1998 USAR warrant officer selection board results, at the time included the statement “Officers twice non-selected for promotion to CW3 or CW4 are removed from the USAR on the first day of the seventh month following the second non-selection.”

8.  On 4 November 1998, AR-PERSCOM published orders assigning the applicant to the Retired Reserve effective 16 November 1998.

9.  The applicant immediately sent several letters to AR-PERSCOM requesting they amend his retirement orders.  The only available AR-PERSCOM response to the applicant is undated and informs him that warrant officer promotion boards are approved by the Secretary of the Army and not by the President.  (If that response did not satisfy his inquiry, he could appeal to the Commander, AR-PERSCOM.)  He apparently continued to drill with his unit up until 1 March 1999.
10.  Army Regulation 135-155 provides policy for the selection and promotion of commissioned and warrant officers of the USAR.  Paragraph 4-30b states that a twice-non-selected officer who is not on extended active duty must be removed within 90 days of the time the board submits its results to Headquarters, Department of the Army (HQDA).

11.  U. S. code, Title 10, section 12242 states that the promotion of permanent reserve warrant officers not on the warrant officer active-duty list to permanent reserve warrant officer grades shall be governed by such regulations as the Secretary concerned may prescribe.

12.  The Reserve Officer Personnel Management Act changed the separation requirements for commissioned officers twice non-selected for promotion.  The removal of such first lieutenants and captains is no later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

13.  In a conversation between an analyst with the Board and the Warrant Officer Career Center on 15 September 1999, the Career Center acknowledged that the information the applicant obtained from their website was incorrect.  Such information applies only to warrant officers on the active-duty list.  Reserve warrant officers not on the active-duty list must be removed within 90 days.  They have since corrected their website.

CONCLUSIONS:

1.  The Board concludes that a Government error and injustice occurred in this case.

2.  The law provides that Army regulations govern the promotion, and separation, of USAR warrant officers not on the active-duty list.  Army Regulation 135-155 provides that a twice non-selected warrant officer who is not on extended active duty must be removed within 90 days of the time the board submits its results to HQDA.  

3.  The front side of the applicant’s non-selection letter provides correct information -- he would be released from an active status no later than                16 November 1998, 90 days after the selection board reports its findings.  This is the effective date (and the correct date) shown on the orders reassigning him to the Retired Reserve.

4.  The reverse side of the applicant’s non-selection letter provides incorrect information – information applicable only to certain grades of commissioned officers and to warrant officers on the active-duty list.  The Warrant Officer Career Center Internet website also contained incorrect information.
5.  The Board concludes that it was reasonable for the applicant to believe his retirement orders contained the incorrect effective date.  He was given the incorrect 1 March 1999 date twice, once in an official document and once in an unofficial but authoritative Internet website.  It was reasonable for him to continue to drill with his unit until 1 March 1999, the date he assumed was the correct effective date, while waiting for AR-PERSCOM to amend his orders.  The Board concludes he is entitled, as an exception to policy particular to his case, to have his retirement date corrected to read 1 March 1999. 

6.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

     a.   voiding the applicant’s transfer to the Retired Reserve on 16 November 1998; and

     b.  showing that the applicant was transferred to the Retired Reserve on         1 March 1999.

BOARD VOTE:  

__mkp___  __clg___  __jpi___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Margaret K. Patterson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999021171	
SUFFIX		
RECON		
DATE BOARDED	19990922	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.02	
2.	135.05	
3.		
4.		
5.		
6.