PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           4 May 2000                   
	DOCKET NUMBER:   AR2000039194

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James P. Stueve		Member	
	Ms. Carol Jo Suiter		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 he be advanced on the retired list to the rank and grade of chief warrant four (CW4), W-4.

3.  The applicant states that he was promoted to CW4 before he retired.

4.  The applicant’s military records show that after having had prior enlisted service, he was appointed a warrant officer one, W-1 and entered active duty on 23 January 1976.  He applied for retirement on 6 October 1988 with an effective retirement date of 1 October 1989.  He was promoted to CW4 effective 1 July 1989 and held that rank until he retired on 1 October 1989 in the rank and grade of chief warrant officer three (CW3), W-3.

5.  Army Regulation 350-100 establishes policies for the receipt, computation and notice of active duty service obligations (ADSO) for all active duty Army officers.  In pertinent part, it states that a warrant officer who accepts a promotion to CW3, CW4, or CW5 incurs a 2-year ADSO beginning on the date of promotion which must be served prior to voluntary retirement.

6.  Title 10, U. S. Code, chapter 369 governs retired grades.  Section 1371 states that a warrant officer retires, 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.  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. 

CONCLUSIONS:

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

2.  The applicant meets the eligibility criteria for advancement to CW4 on the retired list.  However, the Government committed an error at the time he retired.  He incurred a 2-year ADSO when he was promoted to CW4 on 1 July 1989 and he should not have been allowed to retire prior to the completion of his 2-year service obligation.  By law a warrant officer retires, in the permanent regular or reserve warrant officer grade 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 for a period of more than 30 days.  Since the applicant met that statutory more-than-30-day requirement, the Board concludes that he should have been retired as a CW4, W-4, effectively waiving the 2-year ADSO.

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

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was placed on the retired list on              1 October 1989 in the rank and grade of Chief Warrant Officer Four, W-4.

2.  That the Defense Finance and Accounting Service pay to the applicant all retired pay due as a result of the aforementioned correction.

BOARD VOTE:  

__lls___  __jps___  __cjs___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039194	
SUFFIX		
RECON		
DATE BOARDED	20000504	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.