MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  23 February 2000
	DOCKET NUMBER:   AR1999027292

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

			Director	
	Ms. Lee Tinsley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That he be advanced to the next higher grade, Chief Warrant Officer Three (CW3) on the Army of the United States (AUS) Retired List.

APPLICANT STATES:  That he was promoted to CW3 on 1 March 1989 and was placed on the AUS Retired List effective 1 July 1989 in pay grade WO2.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was appointed as a WO1 on 15 April 1980 with 11 years prior enlisted service.  He was promoted to CW2 on 1 October 1983.  He was then promoted to CW3 on 1 March 1989.  Applicant was retired on 1 July 1989 for length of service in the grade of CW2.  According to the applicant’s DAPC-OPP-R Form 143-R (Computation of Officer’s Service), he served a total of 20 years, 0 months and 4 days of active federal service.

Army Regulation 624-100 (Officer Promotions), in effect at the time, states that a warrant officer who accepts promotion to the grade of CW3 will incur a service obligation. AR 635-100 (Personnel Separations), chapter 4-18 (b) states that an individual who accepts an Army of the United States or Regular Army promotion, on or after 1 July 1963 (to pay grade O5, O6, CW3, or CW4), which changes his active duty pay grade, must serve a minimum of 2 years in the new grade.

AR 624-100, paragraph 1-9a (8) provides that an officer is in a nonpromotable status, in spite of the publication of orders, when his voluntary retirement is approved by the Department.  Based on the evidence of record, the applicant’s retirement date was approved prior to his promotion to CW3 thus putting the applicant in a nonpromotable status.  For the applicant to accept promotion to CW3, the applicant would have incurred a service obligation of 2 years.

When a his or her active service (plus service on the retired list) totals 30 years, any retired warrant officer of the Army is entitled to be advanced on the retired list to the highest commissioned grade he or she served satisfactorily on active duty as determined by the Secretary of the Army (10 USC 3964)

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Considering all the facts in this case, including the evidence of record, the applicant is not entitled to be advanced to the next higher grade on the AUS Retired List because his promotion to CW3 was not valid.

2. Although the applicant was in a nonpromotable status he still served in the higher grade and wore the insignia in good faith, he should be deemed to have served in the higher grade in a de facto status.  This allows the applicant to keep any pay and allowances received at the higher grade.

3.  The applicant was separated in accordance with law and regulations and there is no evidence of error or injustice in the retirement process.  He remains eligible for retired pay of CW2.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_RO____  __EB___  ___RW__  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027292	
SUFFIX		
RECON		
DATE BOARDED	20000223	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  129.04	Highest Grade Held (Adv on Retire List)	
2.		
3.		
4.		
5.		
6.