PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            9 November 2000
	DOCKET NUMBER:   AR2000040731

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Ms. Barbara J. Ellis		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, in effect, that he be retired in the rank and pay grade of Chief Warrant Officer Two/W-2 (CW2/W-2).

3.  The applicant’s military records show that on 30 June 1997, he was honorably released from active duty (REFRAD), after completing a total of 22 years and 
27 days of active military service, and that on the following day he was placed on the Retired List in the rank and pay grade of Sergeant First Class/E-7 (SFC/E-7). 

4.  There is a Department of Defense (DD) Form 214 (Certificate of Release or Discharge From Active Duty) on file that confirms the applicant served a prior period of active duty of over nine years, between 29 October 1981 and 
24 February 1991.  This document also verifies that he served this period of active duty as a Regular Army (RA) Warrant Officer and that he was honorably separated on 24 February 1991, in the rank and pay grade of CW2, by reason of failure of selection for promotion.

5.  Section II (Qualification Data) of the applicant’s Department of the Army 
(DA) Form 2 (Personnel Qualification Record-(PQR)), dated 16 January 1997, confirms that he held the dual status rank and pay grade of CW2 in the United States Army Reserve (USAR) while serving on active duty in an enlisted status as an SFC/E-7.  This PQR was the last one prepared on and reviewed by the applicant before he was REFRAD and placed on the Retired List.  

6.  The DD Form 214 issued to the applicant on 30 June 1997 indicates that he separated by reason of length of service retirement, under the provisions of Title 10 of the United States Code, section 3914 (10 USC 3914), after completing a total of 27 years and 27 days of Active Federal Service (AFS).  In addition, this document confirms that he was placed on the Retired List the following day in the rank and pay grade of SFC/E-7.

7.  10 USC 3914 provides the legal authority for the retirement of enlistment members with twenty to thirty years of service. It states that under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service may, upon his request, be retired. 

8.  10 USC 3991 provides the legal authority for computing retired pay for enlisted retirement.  Subparagraph A provides retired pay formulas for the categories of retirees covered under this computation provision of the law.  Subparagraph b provides for the use of the Most Favorable Formula and states, in pertinent part, that if a person would otherwise entitled to retired pay computed under more than one formula of this law or under any other provision of law, that person is entitled to be paid under the applicable formula that is most favorable to them. 
9.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  Chapter 6 of this regulation contains guidance on the nondisability retirement of Commissioned and Warrant Officers on active duty, who have completed 20 years or more of AFS. 

10.  Paragraph 6-14c provides guidance for Commissioned Officer and Warrant Officer retirement at 20 years of service.  Subparagraph (2) states that any Warrant Officer with 20 years of Active Federal Service (AFS) may request and with the approval of the Secretary of the Army be retired.  It also indicates, in effect, that for a USAR Warrant Officer to retire they must have USAR status at time of retirement, but that it is not necessary that they be serving on active duty in his or her Warrant Officer status at time of retirement.  Subparagraph (3) states, in effect, that these provisions specifically apply to active duty enlisted personnel who concurrently hold a Warrant Officer status in the USAR.

11.  Title 10 of the United States Code, section 1293 (10 USC 1293) provides the legal authority to retire Warrant Officers with twenty years or more of AFS.  It states 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.

12.  10 USC 1401 provides the legal authority for computing retired pay for Warrant Officer retirements.  Subparagraph A provides retired pay formulas for the categories of retirees covered under this computation provisions of the law.  Subparagraph b provides for the use of the Most Favorable Formula and states, in pertinent part, that this provision allows that if a person would otherwise be entitled to retired pay computed under more than one formula in subparagraph A or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him. 

CONCLUSIONS:

1.  The Board noted the applicant’s contention that he should be retired as a Warrant Officer and after carefully examining the evidence or record, finds this claim has merit. 

2.  The evidence of record clearly shows that at the time of the applicant’s REFRAD and retirement as an SFC/E-7 he also held a dual status rank and pay grade of CW2 in the USAR.  

3.  By law and regulation, active duty enlisted personnel who concurrently hold a Warrant Officer status in the USAR are eligible to be retired in their Warrant Officer status once they have completed a total of 20 years of AFS.  Therefore, the Board concludes that the applicant’s record should be corrected to show he was placed on the Retired List in the rank and pay grade of CW2/W-2.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that on 30 June 1997 the individual concerned was REFRAD and placed on the Retired List in the rank and pay grade of CW2/W-2.

2.  That the individual concerned by provided retired pay based on the pay formula most favorable to him as a result of his satisfactory service in both pay grade E-7 and W-2, and that he received any back retired pay and allowances due as a result of this correction. 

BOARD VOTE:  

___jlp ___  ___bje __  __owt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Jennifer L. Prater____
		        CHAIRPERSON

INDEX

CASE ID	AR2000040731	
SUFFIX		
RECON		
DATE BOARDED	2000/11/09	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1997/06/30	
DISCHARGE AUTHORITY	AR 635-200  C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400	
2.		
3.		
4.		
5.		
6.