MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            13 January 2000                  
	DOCKET NUMBER:   AR1999029200

	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.

	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Margaret V. Thompson		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 his date of commission be corrected from 14 May 1993 to 7 April 1988.

APPLICANT STATES:  That when he signed his oath of office in April 1988 the wrong box was checked.  Because of that error his date of commission is the date he was promoted from CW3 to captain.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  The following information was derived from documentation provided by the applicant.

He was appointed a WO1, Medical Corps, on 18 January 1985 and entered on active duty.

On 29 March 1986 he was promoted to CW2, Army of the United States (AUS).  On 7 April 1988 he executed an oath of office as a reserve warrant officer.

Department of the Army message 051550Z Dec 86 stated in part that “All permanent reserve warrant officers selected for promotion to a permanent chief warrant officer grade with promotion eligibility dates of 8 May 1986 or later will be appointed in the higher grade by commission . . .”  

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Total Army Personnel Command (PERSCOM).  The PERSCOM stated that the applicant was promoted to CW2 on 28 March 1987, to CW3 on 1 June 1993, and to first lieutenant on 1 June 1992.  The PERSCOM stated that the National Defense Authorization Act for FY87 implemented the commissioning of warrant officers when promoted to CW2.  The PERSCOM recommends approval of the applicant’s request.  The applicant was provided a copy of this advisory opinion and did not provide the Board with any additional evidence or argument.

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

1.  Without the applicant’s Official Military Personnel File (OMPF) it is difficult to determine exactly what occurred in his case.  

2.  However, the pertinent facts as relates to this case is that the applicant was not eligible for commissioning upon his promotion to CW2, AUS, since AUS is not a permanent grade.  Since the PERSCOM stated that the applicant was promoted to CW2 USAR on 28 March 1987, he should have been tendered a commission at that time in conjunction with his permanent promotion.  While it is conceivable that he had intended to complete an oath of office as a commissioned officer on 7 April 1988, the Board notes that the officer, not an administrator, marks the component block of an oath of office.  As such, if an error was made in the choice of appointment, it was made by the applicant.  While the applicant’s failure to be commissioned in conjunction with his permanent promotion to CW2 could conceivably be attributed to the proximity of his permanent promotion to the effective date of the commissioning of warrant officers upon promotion, this would not be the case with his promotion to CW3.  

3.  Based on the preceding conclusions, the Board cannot accept that the applicant simply took his oath of office a year after he was permanently promoted and marked the wrong block on his oath of office. 

4.  Because the applicant wasn’t commissioned, he was exempt from many command related positions and duties, which was the primary reason for the change in law which required the commissioning of chief warrant officers.  This fact in and of itself leads the Board to believe that the applicant was well aware that he was not commissioned.  To now correct his records to give him the benefit of commissioned service without having had the responsibilities of a commissioned officer does not appear to be equitable or just.

5.  In view of the foregoing, there is no basis for granting the applicant's request even with full consideration of the advisory opinion provided by the PERSCOM.

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

_emw____  __ewl___  _mvt____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Board Agency

INDEX

CASE ID	AR1999029200	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000113	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	102.03	
2.		
3.		
4.		
5.		
6.