MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 August 2000
	DOCKET NUMBER:   AR2000035872

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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:  In effect, that he be advanced to the rank and pay grade of Chief Warrant Officer Four/W-4 (CW4/W-4) on the Retired List.  

APPLICANT STATES:  In effect, that he was a CW4/W-4 who had not served the two year active duty service obligation at the time of his retirement which mandated that he be retired in the rank and pay grade of Chief Warrant Officer Three/W-3 (CW3/W-3).  He claims that he just recently discovered that he is eligible to be advanced to CW4/W-4 on the Retired List and that this advancement should be effective as of 31 July 1988.  This is the date when his active duty service when combined with his time on the Retired List equaled 
30 years.  In addition, he indicates that his promotion selection was recorded in a Department of the Army (DA) promotion list published on 27 January 1978, after he had already applied for retirement.  He also states that he did not request a waiver of the two year promotion active duty service obligation because he had no legitimate grounds.  He claims his promotion was effective the week prior to his retirement and took place while he was assigned to the processing unit undergoing retirement processing, as evidenced by the CW4/W-4 entry in block 6a (Grade, Rate, or Rank) of his DD Form 214 (Report of Separation From Active Duty).  However, he also indicates that he was actually retired in his permanent grade of CW3/W-3 as codified in block 27 (Remarks) of the DD Form 214 issued him at the time because he had not served his two year promotion lock in.

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

On 31 July 1978, the applicant was released from active duty (REFRAD), under the provisions of Title 10 of the United States Code, section 1293, by reason of length of service retirement, after completing a total of 21 years, 6 months, and 15 days of active military service.  On the day following his REFRAD the applicant was placed on the Retired List in the rank and pay grade of CW3/W-3.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (Appointments and Reductions) that the applicant attained the rank of CW3/W-3 on 5 May 1976 and that this is the highest rank he attained while serving on active duty.  There is no indication in the DA Form 2-1 nor are there any documents filed in the Military Personnel Records Jacket (MPRJ) that show that he was ever officially promoted to CW4/W-4 or that this promotion was ever made a matter of record in his Official Military Personnel File (OMPF).  

On 31 January 1978, the applicant submitted a letter requesting voluntary retirement on 31 July 1978.  The appropriate authority approved his retirement request for 31 July 1978, in the rank and pay grade of CW3/W-3, and this approval was codified in Orders Number S48-7, dated 10 March 1978, issued by the United States Army Military Personnel Center (MILPERCEN).  

The record contains a properly constituted DD Form 214 (Report of Separation from Active Duty), which was signed by the applicant.  This document shows that on 31 July 1978 he was REFRAD, under the provisions of Title 10 of the United States Code, section 1293, by reason of length of service retirement after completing a total of 21 years, 6 months, and 15 days. 

Title 10 of the United States Code, section 1293 provides the legal authority for warrant officer retirements after twenty or more years of service.  It allows that the Secretary concerned may, upon the warrant officer's request, retire a warrant officer of any armed force under his jurisdiction who has at least 20 years of active service.

Title 10 of the United States Code, section 1371 provides the legal authority for the retired grade in which a warrant officer may retire.  It states, in pertinent part, that a warrant officer retires, as determined by the Secretary concerned, in the permanent regular or reserve warrant officer grade, if any, that he held on the day before the date of his retirement, or in any higher warrant officer grade in which he served on active duty satisfactorily, as determined by the Secretary, for a period of more than 30 days. 

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.  The Board noted the contention of the applicant that he is entitled to be advanced to the rank and pay grade of CW4/W-4 on the Retired List because he was promoted to that grade prior to his being placed on the Retired List as verified in block 6a of his DD Form 214.  However, the Board concluded that this is not a sufficient basis to grant the requested relief.  

2.  The evidence or record clearly shows that the applicant voluntarily requested retirement in the rank and pay grade of CW3/W-3 and that his retirement was approved by DA in that rank and pay grade.  In addition, his personnel qualification record documents that the highest rank and pay grade he held and in which he satisfactorily served while on active duty was CW3/W-3.  

3.  Even if the applicant’s claim that he was promoted to CW4/W-4 is true and the entry in block 6a of his DD Form 214 was the result, this would still not make this promotion action valid or constitute satisfactory service in that rank and pay grade.  By his own admission he, in effect, declined the promotion because he did not want to serve the two-year active duty service obligation.  Further, he elected not to request a waiver of the two-year active duty service obligation because he had no legitimate basis for making such a request.  As a result of these factors, the applicant would have been placed in a nonpromotable status and his promotion to CW4/W-4 would have been rendered invalid.  
4.  The Board also determined that the applicant was not entitled to advancement on the retired list.  By law and regulation, advancement of soldiers on the retired list is only authorized when a member has satisfactorily served on active duty in a higher pay grade.  Since the applicant took no action to either withdraw his retirement to complete his two-year promotion service obligation or to request a waiver of this obligation, the Board found no basis to grant a satisfactory service determination in this case.  Therefore, the Board concluded that the applicant’s advancement to CW4/W-4 on the Retired List was not warranted.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  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

__sk____  ___aj____  ___reb___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000035872	
SUFFIX		
RECON		
DATE BOARDED	2000/08/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1978/07/31	
DISCHARGE AUTHORITY	AR 635-100	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.