PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           21 October 2003
	DOCKET NUMBER:  AR2003089463

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones		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 authorized to retire at the rank of Chief Warrant Officer Five (CW5).

3.  The applicant states, in effect, that he should be allowed to retire in the rank of CW5 because he was selected for promotion to the rank of CW5, effective 4 December 1992, prior to his retirement from the United States Army Reserve (USAR) on 1 October 1992, to attend graduate school.  He further states that he earned a Master's Degree in Public Administration in September 1994 and will be turning 60 years of age on 11 March 2004 and would like to be able to retire at the rank of CW5, a rank he justly earned during his 28 plus years of service.

4.  The applicant’s military records show that he was born on 11 March 1944 and enlisted in the Regular Army on 1 August 1962.  He served until he was honorably released from active duty in the pay grade of E-5 on 19 July 1965.  He was transferred to the USAR and remained in the USAR through a series of continuous reenlistments.

5.  On 4 December 1971, he was appointed as a USAR warrant officer one (WO1) in the specialty of a military personnel technician.  He progressed through the warrant officer ranks and was promoted to the rank of Chief Warrant Officer Four (CW4) on 4 December 1986.

6.  On 13 October 1987, the Army Reserve Personnel Center notified the applicant (20-year letter) that he had completed the required years of service to be eligible for Retired pay at age 60 (11 March 2004).  

7.  On 23 August 1991, the applicant underwent a physical/medical examination. The results of the examination were forwarded to the Office of The Surgeon General (OTSG) in Falls Church, Virginia, on 28 April 1991, for a review of fitness.  The OTSG returned the request for review on 12 June 1992 with a determination that the applicant was not fit for further duty.

8.  On 7 July 1992, the applicant was notified of the results of the fitness review and was counseled on his options.  The applicant elected to be transferred to the Retired Reserve effective 1 October 1992.

9.  Meanwhile, on 10 August 1992, he was notified that he had been selected for promotion to the rank of CW5.  He was also notified that if he had not had a physical examination within the past four years and intended to accept the promotion, he would be required to do so.

10.  On 1 October 1992, he was transferred to the Retired Reserve in the rank of CW4.  He had 25 years, 11 months and 19 days of creditable service for retirement and 29 years, 3 months and 10 days of service for pay purposes.
11.  Army Regulation 135-155 provides policy and procedures for the promotion of warrant officers in the USAR.  Paragraph 4-18 provides that a Reserve Officer, on transfer to the Retired Reserve, will be transferred in the Reserve grade for which selected for promotion.  This is when the transfer is being made because of physical disability, or as a result of completing the number of years of service, or reaching the age at which retirement, transfer to the Retired Reserve, or discharge is required by law.   

12.  Title 10, U.S. Code, section 1406, governs non-regular service retirement and provides, in effect, that a Reserve of National Guard member who is entitled to retired pay under section 12731 of this title shall be retired in the highest grade held satisfactorily by the person at any time in the armed forces, other than in an inactive section of a Reserve component.  

CONCLUSIONS:

1.  Inasmuch as the applicant is not yet eligible and has not applied for retirement at age 60, there is no basis for the Board to grant his request for retirement in the rank of CW5.

2.  However, given the circumstances in his case in which he could not remain in the active Reserve in order to accept his promotion to the rank of CW5, and the applicable regulation which allows him to be transferred to the Retired Reserve in the rank of CW5, the rank in which selected for promotion, the Board finds that it would be in the interest of justice to transfer him to the Retired Reserve in that grade.

3.  Although this does not necessarily authorize him to retire in that rank, this determination will be made by the appropriate officials at the time he requests his retirement at age 60. 

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 the individual concerned was transferred to the Retired Reserve in the rank of CW5.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__mm___  ____fcj  _  __wdp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Melvin H. Meyer____
		        CHAIRPERSON

INDEX

CASE ID	AR2003089463	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/10/21	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV IN GRD	
2.		
3.		
4.		
5.		
6.