MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 January 2001
	DOCKET NUMBER:   AR2000047482

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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:  Promotion to the rank and pay grade of Chief Warrant Officer Three (CW3) and advancement on the Retired List in that grade effective the date of his placement on the Retired List.

APPLICANT STATES:  In effect, that he was denied the opportunity to request a waiver of the service remaining obligation for promotion to the rank of CW3 because he was never informed that he could apply for such a waiver and thus was required to accept retirement in the rank of Chief Warrant Officer Two (CW2).  He further states that he recently discovered that his senior rater (SR) retired without having served the promotion lock-in and was informed by his SR recently that he was not informed of the provisions to request a waiver because they were hard to get and the SR was requesting one and did not believe that two would be approved.  He goes on to state that it is obvious that the information was available but that his SR intentionally withheld it from him and caused him to be retired as a CW2 vice a CW3.  Additionally, he states that he would have served whatever time was necessary for him to have retired in the in the rank of CW3.  In support of his application he submits original copies of his promotion certificate, orders and a copy of his leave form showing that he was on terminal leave as a CW3 until 29 February 1984. 

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

On 24 February 1977 after having served 12 years, 11 months and 28 days of active service, the applicant was honorably discharged in the pay grade of E-7 in order to accept an appointment as a United States Army Reserve (USAR) warrant officer one (WO1) with a concurrent call to active duty.

He entered active duty the following day as a USAR WO1 and was promoted to the rank of CW2 on 25 February 1979.

On 7 April 1983, the applicant was notified in writing by the Department of the Army Total Army Personnel Command (PERSCOM) that as a USAR officer he would reach his maximum allowable years of active Federal service on 31 March 1984 and that his retirement eligibility date was 1 March 1984.  He was further informed that he would be released from active duty (REFRAD) on 31 March 1984 unless he had a service remaining obligation because of promotion.

On 26 May 1983 he was informed that his acceptance of promotion would incur a 2-year service remaining obligation and that if he declined promotion to the next higher grade he would be REFRAD on 31 March 1984.  He was also advised of his right to apply for voluntary retirement in lieu of REFRAD.  On 9 June 1983 the applicant completed an election statement in which he indicated that he understood that his mandatory release date was 31 March 1984, that acceptance of promotion to the rank of CW3 would incur a 2-year service remaining obligation, and that he declined to accept the retention that the service remaining obligation for promotion would afford him.

Orders were published by the PERSCOM on 6 October 1983 which announced the applicant’s promotion to the rank of CW3 effective 1 November 1983.  The orders specified that the promotion was not valid and would be revoked if the officer was not in a promotable status on the effective date of promotion.

On 31 October 1983 his orders were published which authorized his placement on the Retired List in the rank of CW2 effective 29 February 1984.  

The applicant went on terminal leave from his duty station at Fort Bliss, Texas effective 20 December 1983 and his leave form shows that he was a CW3.

On 29 February 1984 he was REFRAD in the rank of CW2 and was placed on the Retired List in that rank effective 1 March 1984.  He had served 20 years and 4 days of total active service.

A review of the applicant’s records shows that his chain of command had previously requested that the applicant be stabilized in his position at Fort Bliss for a specified period and that the request was denied by the PERSCOM because of current and projected shortages in the applicant’s specialty (Data Processing Systems Repair Technician).

Title 10, United States Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completing 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

Army Regulation 624-100, in effect at the time, served as the authority for officer promotions.  It states, in pertinent part, that personnel who have an approved retirement are considered to be in a non-promotable status.

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.  In order to be advanced to a higher grade on the Retired List, the applicant must have at some time been properly advanced to and satisfactorily served in a higher grade prior to his being placed on the Retired List.  The applicant has not submitted evidence with his application, and the evidence of record does not contain any evidence to show that he was properly promoted to a higher grade than he held at the time of retirement.  In fact, there is evidence to suggest that he declined the promotion in order to retire.

3.  Inasmuch as the applicant was in a nonpromotable status due to his having an approved retirement prior to the effective date of his promotion and since there is no evidence in the available records to show that he was granted a waiver of the 2-year service remaining obligation associated with acceptance of the promotion, his promotion to the rank of CW3 was not valid and there is no basis to advance him on the Retired List in the rank.

4.  The applicant’s contention that he was not informed that he could request a waiver of the 2-year service remaining obligation has been noted by the Board.  However, the Board finds that he was afforded the opportunity to remain on active duty to complete his service remaining obligation and clearly elected to retire instead.  The Board also notes that given the shortage that existed in his specialty and is documented in his records, it would not have been appropriate for the Department to waive the service remaining obligation.

5.  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

__ena___  __mdm__  ___clg __  DENY APPLICATION

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

INDEX

CASE ID	AR2000047482	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/01/09	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/adv on ret list	
2.		
3.		
4.		
5.		
6.