MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2000                   
	DOCKET NUMBER:   AR2000038030

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo Suiter		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 on the Retired List to the rank and grade of Chief Warrant Officer Four (CW4), W-4.

APPLICANT STATES:  In effect, that he is requesting advancement on the Retired List to CW4 based on an injustice that occurred at the time of his retirement.  He was promoted to CW4 on 10 March 1967 and mandatorily retired on 31 March 1967 after having served in the rank and grade of CW4, W-4 for    21 days.  He states that he was issued retirement orders around January 1967 with an effective mandatory retirement date of 31 March 1967.  His retirement order had been issued prior to the date his name appeared on the promotion list and prior to his 10 March 1967 promotion effective date.  He was unaware that he had the ability to seek redress until he recently received “Army Echoes” newsletter.

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

After having had prior commissioned and enlisted service in the U. S. Marine Corps, the U. S. Marine Corps Reserve, and the U. S. Navy, he was appointed a warrant officer aviator in the U. S. Army Reserve and entered active duty on       8 February 1958.  He was promoted to Chief Warrant Officer Three (CW3), W-3 on 29 November 1962.  

On 2 February 1966, the applicant was notified by the Separation and Retirement Branch, Office of The Adjutant General (TAG) that he had been considered but not selected for retention beyond his retirement eligibility date and that he would therefore be mandatorily released from active duty (REFRAD) on 30 April 1967.  He would be eligible for voluntary retirement on 1 April 1967.  He was also informed that if his retention status changed for any reason he would be notified.

On 3 October 1966, the applicant submitted a request for retirement to be effective 31 March 1967.  The TAG approved his request for retirement and published Special Order Number 3, Department of the Army, dated 5 January 1967 retiring him from active service upon his application, releasing him from active duty 31 March 1967 and placing him on the Retired List 1 April 1967.

Special Order Number 48, Department of the Army, dated 10 March 1967 promoted the applicant to CW4 with a date of rank of 10 March 1967.

On 15 March 1967, the applicant requested a waiver of the 2-year service obligation upon acceptance of promotion to CW4.  He cited Army Regulation 635-130, paragraph 10b(3a) which suggested that consideration be given to unfavorable personnel action of a magnitude sufficient to warrant a waiver of service obligations and he believed that his notification of his mandatory release from active duty was of such magnitude to warrant the granting of the requested waiver.  He also cited paragraph 10b(3) of that regulation, which concerned hardships.  He stated that upon receipt of his mandatory retirement letter he began preparations to enter civilian life and retention on active duty would create a hardship on his family.  He concluded by stating that if the waiver was granted he would accept the promotion to CW4.  If it was not, he would be forced to decline the promotion.

The applicant’s request was endorsed by the Commanding General of the Infantry Center who released an electronic message to TAG requesting a waiver to the applicant’s 2-year promotion active duty service obligation (ADSO) and requesting that the applicant be allowed to retire as a CW4 on 31 March 1967.  He based his waiver request on the fact that the applicant’s retirement request was, in effect, a mandatory action resulting from his nonselection for retention.  In addition, he stated that this case appeared to satisfy the regulatory waiver consideration criteria of being an unfavorable personnel action of sufficient magnitude to warrant approval of a waiver of the ADSO.

On 21 March 1967, TAG issued an electronic message denying the request for a waiver to the applicant’s ADSO.  This reply provided no specific responses to any of the considerations and issues raised in the original waiver request.  It simply stated that, by regulation, the ADSO could not be waived and the applicant was directed to take immediate action to decline his promotion.

On 31 March 1967, the applicant declined his promotion to CW4 in writing.  

On 31 March 1967, the applicant was honorably released from active duty in the rank and grade of CW3, W3 after completing 20 years and 14 days of creditable active service.  On 1 April 1967, he was placed on the Retired List in the rank and grade of CW3, W3.  

In June 2000, the Army Grade Determination Review Board (AGDRB) declined to consider the applicant’s request for advancement on the Retired List.  The denial was based on the fact that the applicant had not satisfactorily served on active duty as a CW4 for a period of more than 30 days.

Title 10, U. S. Code, section 1293, provides the legal authority for the retirement of warrant officers with 20 or more years of service.  This provision of law states that the Secretary concerned may, upon the warrant officer’s request, retire the warrant officer of any armed force under his jurisdiction who has at least 20 years of active service.

Title 10, U. S. Code, section 1371, provides the general legal rule for warrant officer retirement grades.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, 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.

Title 10, U. S. Code, section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.

Army Regulation 624-100, in effect at the time, prescribed policies and procedures for temporary promotion in the Army of the United States of commissioned officers and warrant officers on active duty.  In pertinent part, it stated that a promotion order would be revoked when an officer declined promotion.  It also stated that officers promoted to the grade of colonel, lieutenant colonel, CW4 or CW3, whose promotion changed their pay grade, would be required to serve a minimum of 2 years under such promotion prior to becoming eligible for voluntary relief from active duty or voluntary nondisability retirement.  

Army Regulation 635-100 provided the authority for the separation of commissioned and warrant officers from the active Army.  Chapter 3 discussed REFRAD of non-regular officers and warrant officers.  In pertinent part, it stated that warrant officers would be mandatorily REFRAD on the last day of the month following the month in which they completed 20 years’ active Federal service.  As such, warrant officers were qualified for retirement and could apply for voluntary retirement to be effective not later than their scheduled release date.  Exceptions were those retained by Headquarters, Department of the Army under voluntary retention programs and those serving on a promotion lock-in.  Those serving on a promotion lock-in could be released early to meet the current needs of the Active Army but in no event would the officers be released prior to completion of 6 months’ active service in the new grade.

Army Regulation 635-130, in effect at the time, established the procedures for the implementation of laws and policies governing the retirement of commissioned and warrant officers, except for physical disability.  In pertinent part, it stated that an individual who accepted an Army of the United States promotion to pay grades 0-5, 0-6, W-3 or W-4 which changed his active duty pay grade must serve a minimum of 2 years in the new grade.  It provided that ADSOs may, at the discretion of the appropriate officials in Headquarters, Department of the Army, be waived when in the best interest of the service or when substantial or undue hardship would result.  Paragraph 10b(3)(a) stated that when processing an application for waiver of an ADSO when the best interests of the service were involved, retirement in lieu of elimination action under Army Regulation 635-105 or in lieu of any other unfavorable personnel action of a magnitude sufficient to warrant a waiver to the service obligation should be considered.
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.  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.

2.  As a non-Regular-Army officer, the applicant always knew that he could not remain on active duty for more than 20 years unless selected for retention by Headquarters, Department of the Army under voluntary retention programs.  He was notified in February 1966 that he had not been selected for retention and that his mandatory release date was 30 April 1967.  This was a normal administrative action, not an unfavorable personnel action.  

3.  The applicant reasonably applied for voluntary retirement in lieu of remaining until his mandatory REFRAD so he could obtain the benefits of such retirement.  

4.  The Board notes that the applicant concluded his request for waiver of the promotion ADSO by stating that if the waiver was granted he would accept the promotion to CW4 and, if it was not granted, he would be forced to decline the promotion.  He had set the conditions of his declination; neither the TAG nor anyone else “forced” him to decline the promotion.  He made a personal decision to continue with his plans to leave the Army rather than accept the additional service obligation inherent in accepting a promotion to CW4.

5.  The Board concludes that the denial of the applicant’s request for waiver of the ADSO was proper.  The justification provided by the applicant and supported by the Commanding General, Infantry Center did not meet the regulatory standard for approval.  Army Regulation 635-130, paragraph 10b3(a) stated that when processing an application for waiver of an ADSO when the best interests of the service are involved, retirement in lieu of elimination action or in lieu of any other unfavorable personnel action of a magnitude sufficient to warrant a waiver to the service obligation should be considered.  The best interests of the service were not involved in this case and, again, the applicant’s mandatory REFRAD was not an unfavorable personnel action, much less a personnel action equivalent to that requiring consideration of retirement in lieu of elimination.  

6.  In addition, failure to grant the ADSO waiver did not impose a hardship on the applicant.  The denial of his waiver request did not require him to remain in the Army any longer than he was already scheduled to remain.  Such a waiver would be appropriate for an officer who had begun his ADSO when a hardship situation unexpectedly occurred.  Since the applicant declined his promotion, his ADSO never began.  Since he declined his promotion, his promotion order was, or should have been, revoked and, in effect, the applicant never validly served as a CW4.  Since the applicant never validly served as a CW4, it is not appropriate to advance him to the rank and grade of CW4, W-4 on the Retired List.  

7.  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

__cmf___  __fe____  __cjs___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038030	
SUFFIX		
RECON		
DATE BOARDED	20000912	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.09	
2.		
3.		
4.		
5.		
6.