MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 December 2000
	DOCKET NUMBER:   AR2000042527

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. John P. Infante		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 retroactively promoted to the rank and pay grade of Chief Warrant Officer Four/W-4 (CW4/W-4) and that he also be advanced to that rank and pay grade on the Retired List.  

APPLICANT STATES:  In effect, that his records need to be searched to find a missing efficiency report that he received after his tour in Vietnam in 1966.  He claims that the Warrant Officer Branch reported it lost and this he contends impacted his promotion nonselection when he became eligible for promotion in 1969.  He claims that this missing report was the only reason he would not have been promoted at the time and based on this he requests that he be advanced to CW4 on the Retired List at this time.  He indicates he has no specific evidence other than all his evaluation reports were excellent and he served in many jobs while in the Army that called for a commissioned officer and did well and received good reports for the job he did in those positions.  

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

On 31 December 1969, he was released from active duty (REFRAD), by reason of voluntary retirement, after completing 20 years and 25 days of active military service.  At the time of his separation, the applicant held the rank and pay grade of Chief Warrant Officer Three/W-3 (CW3/W-3).  On the day following his REFRAD, the applicant was placed on the Retired List in that rank and pay grade. 

The record contains an Office of Personnel Operations (OPO) letter pertaining to the applicant, dated 5 September 1969, subject: Promotion status in the USAR.  This letter indicates that the applicant was eligible for promotion consideration by the last Department of the Army (DA) Reserve selection board but due to an error, he was not considered.  It also indicated that his name was being submitted to the DA Stand-By Advisory Board (STAB) for promotion consideration.

On 18 December 1969, the Chief of the Promotions Division, OPO addressed a letter to the applicant, subject:  Promotion Status in the USAR.  This letter advised the applicant that he had been eligible for promotion consideration by the DA Reserve selection board that convened on 26 August 1969 and through an administrative error his name was not submitted to the selection board.  As a result of this his records were referred to a DA STAB for consideration.  

The OPO letter further advised the applicant that the STAB, using the criteria established for the 1969 selection board, recommended him for promotion.  After computing his promotion eligibility date (PED) to CW4, his promotion effective date was established as 5 November 1970.  The letter went on to indicate that a promotion letter would be issued to him on or about his PED provided he elected to remain in an active and promotable Reserve status.  
A Memorandum for Record (MOR) in the file confirms that the applicant was notified of his selection for promotion and his PED on 18 December 1969 and that he was notified that he must remain on active duty in order to be promoted on 5 November 1970.  

The record includes a Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to and authenticated by the applicant on the date of his REFRAD.  This document confirms that on 
31 December 1969, he was separated, in the rank and pay grade of CW3/W-3, and that he was placed on the Retired List the following day in that rank and pay grade.  

Title 10 of the United States Code, section 1293 (10 USC 1293) provides the legal authority for the twenty or more year retirement of warrant officers.  It states, in pertinent part, that the Secretary concerned may, upon the warrant officer's request, retire a warrant officer who has at least 20 years of active service.

10 USC 1371 provides the legal authority for the assignment of warrant officer retired grade.  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. 

10 USC 3964 provides the legal authority for advancement on the retired list.  It states, in pertinent part, that this provision of the law applies only to warrant officers of the Army; enlisted members of the Regular Army; and reserve enlisted members of the Army who, at the time of retirement, are serving on active duty.

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 considered the applicant’s contention that the only reason he did not receive a promotion to CW4 prior to his retirement was because of a missing efficiency report.  However, the Board finds no evidence to suggest this was the case.  

2.  The evidence makes clear that a material error existed in the applicant’s file when he first should have been considered for promotion by a DA promotion selection board that convened in August of 1969.  However, it is also evident that this error was corrected and that the applicant was considered for promotion by a STAB who used the criteria used by the original 1969 selection board.  
3.  The Board further noted that after consideration by the STAB the applicant was in fact selected for promotion to CW4/W-4.  Thus, the Board finds no basis for granting the applicant’s request that he be retroactively promoted to 
CW4/W-4.

4.  The record also confirms that the applicant was afforded the opportunity to remain on active duty through 5 November 1970, at which time he would have  attained eligibility for promotion based on his PED.  However, after being advised of his option to remain on active duty for his promotion, the applicant instead elected to voluntarily retire, in the rank of CW3, on 31 December 1969. 

6.  By law, in order for a member to advanced on the Retired List they must have held and satisfactorily served in the higher grade while on active duty.  There is no evidence that suggests that the applicant ever held or served in a rank or pay grade above CW3/W-3.  Therefore, the Board concludes that his advancement to the rank and pay grade of CW4/W-4 on the Retired List is not warranted.  

7.  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.

8.  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

___rvo __  __ewl ___  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042527	
SUFFIX		
RECON		
DATE BOARDED	2000/12/07	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1969/12/31	
DISCHARGE AUTHORITY	10 USC 2293	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.