MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 November 2000                  
	DOCKET NUMBER:   AR2000049473

	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	
	Ms. Juanita I. Williams		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas A. Pagan		Chairperson	
	Mr. Roger Able		Member	
	Mr. Thomas E. O’Shaughnessy		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:  That he be advanced on the retired list to the grade of chief warrant officer four (CW4).  

APPLICANT STATES:  That he was informed by the personnel office when he was out-processing for retirement that he eventually would be advanced to CW4 on the retired list for pay purposes.

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

On 31 July 1978 while serving on active duty in the enlisted rank of master sergeant (MSG) (E-8), he was released from active duty by reason of “required service for retirement” and placed on the retired list the following day in the rank of chief warrant officer three (CW3).  His separation document (DD Form 214) shows him credited with 20 years, 3 months, and 8 days of active service as does DAPC–PS Form 143 (Computation of Officer’s Service), dated 20 April 1978, using his projected retirement date of 31 July 1978.  

His DA Form 3713 (Data for Retired Pay) shows his active duty grade as MSG and his highest grade attained, permanent (USAR) grade, and retired grade as CW3.  The statute authorizing his retirement is shown as Title 10, United States Code, section 1293, and the statute authorizing his retired grade is shown as Title 10, United States Codes, section 1371.  

The applicant began his military career in 1958 in enlisted status.  He was appointed a warrant officer (WO-1), USAR, with concurrent call to active duty from enlisted status on 20 December 1968.  He was promoted to chief warrant officer two (CW2) in the active Army.  Effective 27 May 1972 he was released from active duty as a CW2 for the purpose of enlisting in the Regular Army, after being denied voluntary indefinite status (on active duty) as a warrant officer. Thereafter, he was promoted to the grade of CW3, USAR, effective 28 February 1978 while still serving on active duty in enlisted status.  There is no evidence that the applicant was ever promoted to CW4.  

On 10 January 1972 in response to an inquiry from the applicant concerning his release from active duty as a warrant officer, the Office of Personnel Operations, Department of the Army, Washington, D.C., advised the applicant, pertinently, that “When you reach 20 years active Federal service you may retire as a warrant officer.  You remain eligible for promotion as a warrant officer in the USAR while serving on active duty as an enlisted member.  Your grade upon retirement will be the higher of:  highest grade served on active duty (CW2); or highest grade to which appointed in the USAR.  If you are appointed to CW3 in the USAR prior to retirement you may retire in that grade.”  

On 12 September 2000 in a memorandum to this Board, the Army Grade Determination Review Board (AGDRB) stated that it had considered the applicant’s request for advancement on the retired list to CW4 and had determined to deny advancement.  The AGDRB stated that it is limited by the provisions of Title 10, United States Code, section 3964 (10 USC 3964) to advancement to the highest grade satisfactorily held while on active duty; and that according to his records, the highest grade held while on active duty was CW2.  Therefore, the AGDRB could not advance him to CW4, as he requested.  

The memorandum from the AGDRB also stated that during its review of the applicant’s case, it had noted an irregularity, in that he was retired in the grade of CW3 while the highest grade he held on active duty was CW2; and because of this irregularity and the inability to advance the applicant to the grade requested, his case was forwarded to this Board for further review and consideration.  

10 USC 3964 provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

10 USC  1293 provides 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…. 

10 USC 1371 provides that unless entitled to a higher 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.  

Change 21 to Army Regulation 635-100 (Personnel Separations –Officer Personnel), dated 15 October 1975, paragraph 4-14b(1), in effect at the time, provided that any warrant officer who has at least 20 years of active Federal service…may upon his application, and at the discretion of the Secretary of the Army, be retired “(10 USC 1293).”  Subparagraph (2) stated that for a reserve warrant officer to retire under this provision he must have a United States Army Reserve status at time of retirement.  "It is not necessary for him to have served, or to be serving, on active duty in his warrant officer status at time of retirement (JAGA 1954/8666, 17 Nov 1954).”  
Subparagraph c of the foregoing citation provided “c.  Enlisted personnel.  The provisions of a and b above apply to enlisted personnel on active duty as such who concurrently hold commissioned or warrant officer status in the USAR.”  

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.  There is no evidence to show that the applicant was ever promoted to or held the grade of CW4.  Consequently, his request to be advanced on the retired list to that grade is without merit.  Therefore, the action taken by the AGDRB to deny advancement on the retired list was appropriate.  

2.  Since the AGDRB raised the question of the regularity of the applicant’s retirement in the grade of CW3, the Board considers it appropriate to address that issue.  

3.  First, there is no doubt that the applicant completed in excess of 20 years of active Federal service as of 31 July 1978 when he was released from active duty by reason of “required service for retirement.”  This is confirmed by his records, DD Form 214, the DAPC-PS Form 143 and DA Form 3713.   

4.  Secondly, while the Board notes, as did the AGDRB, that the applicant did not serve on active duty in the grade of CW3, the Board is aware of no regulatory or statutory authority that required him to have served on active duty in that grade in order to retire in that grade.  

5.  The foregoing conclusion is supported by the provisions of Army Regulation 635-100, in effect at the time, which stated that “it is not necessary for him to have served or to be serving on active duty in his warrant officer status at time of
retirement.”  Change 21 to the regulation cited a legal opinion supporting that regulatory provision.  

6.  The law (10 USC 1371) authorizing his retired grade as reflected on his 
DA Form 3713 (Data for Retired Pay) clearly states, in pertinent part, that a warrant officer retires in the permanent or reserve warrant officer grade that he held on the day before the date of his retirement.  On the day before the applicant’s retirement, he held the permanent (USAR) grade of CW3, the grade in which he was retired.  

7.  In the Board’s opinion the law (10 USC 1371) requires a warrant officer to have served on active duty satisfactorily for a period of more than 30 days only if retirement was to be in a higher warrant officer grade than that held on the day prior to the date of retirement.  

8.  Further, Army Regulation 635-100, in effect at the time, which governed officer separations, specifically addressed enlisted personnel (paragraph 
4-14b(2), stating that the cited provisions concerning commissioned and warrant officers “apply to enlisted personnel on active duty as such who concurrently hold commissioned or warrant officer status in the USAR.”  

9.  In view of the foregoing conclusions, the Board is assured that the applicant’s retirement in the grade of CW3 was appropriate and correct.  However, as indicated above, the Board found nothing in the records or the evidence submitted by the applicant to support his request for advancement on the retired list to the grade of CW4.  

10.  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

__TAP___  ___RA___  __TEO___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049473	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001121	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	319	
2.		
3.		
4.		
5.		
6.