PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           17 October 2002                  
	DOCKET NUMBER:   AR2002067251

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston          		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Richard T. Dunbar		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 allowed to rescind his request for a warrant officer position and be allowed to continue as a commissioned officer with acceptance of promotion to major.

3.  The applicant states, in effect, that after he received his 20-year retirement eligibility letter and was non-selected for promotion a second time, he applied for conversion to a warrant officer program to continue in the service.  Subsequent to this he was notified that he had been selected for promotion to major and requested reversion to accept that promotion.

4.  The applicant’s military records show that he first entered the Army Reserve (USAR) in an enlisted status on 15 April 1980.  He completed his obligated enlisted tour and enlisted in the Alabama Army National Guard (ALARNG) on 25 February 1984.  On 26 October 1984 he was commissioned a second lieutenant in the ALARNG.

5.  In 1986 he reverted to the USAR, was promoted to first lieutenant on 26 October 1987, and to captain on 24 October 1991.

6.  The applicant was considered but non-selected for promotion to major by the mandatory promotion boards for 1999 and 2000.  

7.  On 10 February 2001, the applicant was notified that his promotion packet had significant deficiencies and he had until 1 March to correct these deficiencies. The applicant complied with this notice and his packet was referred to the 2001 selection board.

8.  The record indicates that the applicant was issued a 20-year letter of eligibility for Retired Reserve pay at age 60 on 16 May 2001.

9.  The applicant reports that, on 1 July 2001, he was informally notified that, as a two-time non-select for promotion with 20 years of service, he would be transferred to the Individual Retired Reserve on 15 July 2001.

10.  The applicant reports that he inquired as to what options he had to continue in an active capacity and was advised that he could convert to a warrant officer status and be retained.  

11.  There is no evidence that an application was prepared or approved even though the applicant executed an Oath of Office, as a Chief Warrant Officer Four, on 21 July 2001.  

12.  On 26 July 2001, the applicant was notified that he had been selected for promotion to major, by the board that recessed 5 April 2001.
13.  Upon notification of this selection the applicant reports that he inquired as to the procedure to convert back to a commissioned status and accept the promotion.

14.  In the process of this review, as documented by a series of e-mail messages, it was noted that if the applicant had converted to warrant officer status he would not be eligible to accept the promotion and his name would be deleted from the official results of the selection board.

15.  A review of the applicant's leave and earnings statement shows that he continued to perform duties and be paid as a captain during this period.

16.  A 4 March 2002 advisory opinion was obtained from the Chief, 81st Regional Support Team.  Within this opinion the chief stated that: "As a 2XPO for promotion to MAJ for 2000 and 2001 boards service member vacated his appointment to pursue an appointment as a Warrant Officer.  However, upon researching this case, DA PERSCOM did not receive or approve any appointment to Warrant Officer for this individual."  The chief opined that the execution of warrant officer Oath of Office was done without proper authority but because the applicant was attempting to become a warrant officer that he had vacated his commission and he was in a "no status" with the military.  He stated that because of this, there was no reason to agree to the applicant's request and allow him to revert and accept the promotion.  The chief did indicate that it would be fair to the applicant that he be allowed to retain all pay and retirement points received from July 2001 through the present.  

17.  The applicant's formal response is not of record; however, he did submit a subsequent correspondence, via e-mail, noting his disagreement with the opinion stating it was flawed and that if he didn't have proper application for conversion the vacation of his commission was also improper.

CONCLUSIONS:

1.  The Board notes the advisory opinion, however, it does not concur with the conclusions reached in that opinion.  The information upon which the opinion was made was, in part, erroneous.  The applicant was non-selected by the 1999 and 2000 promotion boards, but was selected for promotion by the 2001 board.

2.  The Board agrees with the advisory opinion wherein it states that the applicant would have to vacate his commission to seek the warrant officer status. It also notes that there is no indication that an application to appoint him as a warrant officer was properly submitted or approved, and without an approved request the Oath of Office is invalid.  

3.  There is also no request or acceptance of a request to vacate his commission. The Board concludes that, if there is no valid application for warrant officer commission, there can be no valid vacation of the applicant's commission. Without a valid acceptance of a request to vacate his commission he was legally still a commissioned officer. 

4.  The Board concludes that had the applicant not been erroneously advised he was to be retired on 15 July 2001 due to being non-selected in 2001, he would not have requested the conversion to warrant officer and he would have been able to accept the promotion to major.  

5.  In view of the foregoing findings and conclusions, it is in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

	a.  by purging all references to an application for status change to warrant officer for the individual concerned;

	b.  by showing that the applicant continued to serve as a commissioned officer during the appeal process;

	c.  by reinstating his name on the 2001 selection board list for majors; and, 

d.  by showing that the applicant was promoted to major with an appropriate date of rank and effective date of rank. 

BOARD VOTE:  

__JHL___  __MVT__  __RTD__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   JoAnn H. Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR2002067251	
SUFFIX		
RECON		
DATE BOARDED	20021017	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.