RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  12 February 2004
	DOCKET NUMBER:  AR2003090992

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Robert J. Osborn		Member	
	Mr. Lester Echols		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his records be corrected to show he served as a warrant officer from 8 March 1993 to 5 May 1998 a total of 5 years, 1 month, and 27 days [sic] with exclusion from his Mandatory Removal Date calculation, and that his date of rank for major, Aviation, USAR be corrected to 6 May 1998, with entitlement to back pay and allowances.  He also requests his officer evaluation report (OER) for his current Enduring Freedom mobilization period be corrected to reflect his service in the grade of major and all other OER’s ending after May 1998 to present show his grade as a major.

2.  The applicant states that he left active duty as a captain on 31 August 1992 (serving 8 years and 8 months in that grade) and accepted a commission as a Reserve captain on 1 September 1992.  He joined the Colorado Army National Guard (COARNG) and agreed to serve as an aviation chief warrant officer two (CW2) as of 8 March 1993.  He left the COARNG and returned to the Reserve on 6 May 1998 after spending 4 years, 11 months, and 28 days in the COARNG as an Aviation Warrant Officer.  After he left the COARNG he was assigned to the Army Reserve Personnel Command (AR-PERSCOM) Control Group (Reinforcement) effective 7 May 1998.  It is his position that he terminated his warrant officer service at that point and resumed his commissioned service.

3.  The applicant states that while in the COARNG he was promoted to major by the May 2003 [sic] Reserve Components Selection Board (RCSB).  The effective date of this promotion was backdated to 1 September 1992, which was more than 6 months before he joined the COARNG.  Because he could not accept the promotion to major and continue to fly (no available officer slots), he could not be promoted.  He terminated his warrant officer service on 6 May 1998 and continued his commissioned service.  On 5 May 2000, he accepted assignment as an aviation commissioned officer in a USAR troop program unit (TPU).  He was again promoted to major by AR-PERSCOM on 10 October 2000 with an effective date of 20 August 2002.

4.  The applicant also states that on 9 May 2002, almost two years after his second promotion to major, AR-PERSOM determined that by accepting an appointment as an aviation warrant officer a year earlier, he had vacated his status as a commissioned officer.  Therefore, his promotion was revoked.  After much largely fruitless contact with AR-PERSCOM regarding this absurd reversion to warrant status, he was invited to submit a recommissioning package in February 2003 and he did so.  He was appointed a major in March 2003.  He further stated that he was paid and assigned to a Reserve captain’s position from 7 May 1998 and also paid as a major from August 2000, which AR-PERSCOM later acknowledged was not improper.   

5.  The applicant provides his AR-PERSCOM promotion memorandums for major dated 21 August 1992 and 10 October 2000, his AR-PERSCOM transfer order dated 20 April 1993, his ARNG Oath of Office dated 1 March 1993 and appointment orders, his National Guard Bureau Form 22 (Report of Separation and Record of Service), his AR-PERSCOM appointment letter dated 3 May 2003 and eligibility memorandum dated 26 July 1992, his AR-PERSCOM transfer order dated 8 May 2000, his correct the record Oath of Office as a captain dated 1 September 1992, his Revocation of Promotion memorandum dated 9 May 2002 and De Facto Status memorandum dated 13 May 2002, his appointment memorandum for captain effective 25 April 2003, and his OER’s ending 21 July 2001 and 18 August 2002 in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records show he was commissioned in the Regular Army as a second lieutenant effective 9 May 1980.  He was promoted to first lieutenant effective 28 November 1981 and to captain 1 January 1984.

2.  He was separated from active duty effective 31 August 1992 and appointed as a captain in the Army Reserve, USAR Control Group (Individual Ready Reserve) effective 1 September 1992.

3.  He was appointed in the COARNG as a CW2 effective 1 March 1993.  Appointment as a warrant officer automatically terminated his prior commissioned officer status.

4.  He was considered and selected for promotion to major by the 1993 RCSB, which convened in March 1993.  He was issued a selection for promotion memorandum dated 3 May 1983 showing his promotion eligibility date (PED) as 1 September 1992, the date after his release from active duty (REFRAD).

5.  He was separated from the COARNG in the grade of CW2 effective 6 May 1998.  He was transferred to the USAR Control Group (Reinforcement).

6.  On orders dated 8 May 2000, he was transferred to a Reserve TPU in the grade of captain, in error, with an effective date of 5 May 2000.

7.  In a memorandum from AR-PERSCOM dated 9 May 2002, the applicant was advised that his promotion to major was revoked.  He was also advised that he was erroneously promoted and his appointment as an CW2, effective 1 March 1993, remained in force as a valid appointment.

8.  On 13 May 2002, the Chief, Military Personnel Actions Branch, AR-PERSCOM, advised the applicant that their database was not corrected to reflect that he had vacated his appointment as a commissioned officer when he executed an oath of office 

as a warrant officer (WO) in the ARNG on 1 March 1993.  In accordance with paragraph 3-18c, Army Regulation 135-155, the applicant discharged his functions in the grade of major in good faith and is authorized de facto status, for pay purposes only, from 20 August 2000.

9.  The applicant’s OER for the period ending 4 May 2001 shows he was rated as a major with a date of rank of 20 August 2000.  His OER for the period ending 4 May 2002 shows he was rated as a major with a date of rank of 1 September 2002.

10.  He was appointed in the Reserve as a captain effective 25 April 2003.

11.  He was considered and selected for promotion to CW3 by the 2003 RCSB, which convened on 21 April and recessed on 20 May 2003.  Based on his re-appointment as a captain, his name was deleted from the board results.

12.  In a letter dated 25 August 2003, the Chief, Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM), advised the applicant that his file revealed that he was not in the zone for promotion consideration to major by the 2001 RCSB.  He was promoted to captain on 1 January 1984, while serving on active duty.  On 1 March 1993, he vacated his commission by accepting appointment as a WO in the ARNG.  The Office of Promotions was unaware of the appointment and submitted his file to the 1993 major RCSB.  He was recommended for promotion with a PED of 1 September 1992, the date after REFRAD.  The memorandums dated 3 May 1993 and 26 July 1993, are notifications of selection for promotion and not promotion orders.  On 5 June 1995, his WO status was revealed and his name was deleted off the selection board’s official results.  Upon release from the ARNG to the Reinforcement control group as a WO he was incorrectly accessioned into the system as a captain.  On 10 October 2000, he was promoted to major by AR-PERSCOM with a date of rank of 1 September 1992 (the date of his appointment as a Reserve captain), based on the selection for promotion by the 1993 RCSB.  Since he was not in a commissioned officer status when the 1993 board convened, he was not eligible for the promotion and the promotion was voided on 9 May 2002.  Based on the fact that he was not re-appointed a commissioned officer until 24 March 2003, he was not in the zone for promotion consideration to major by the 2001 through 2003 promotion selection boards; therefore, his request for special board consideration was denied.  He was considered and selected for promotion by the 2003 WO RCSB.  Prior to the convening of the board on 21 April 2003, he was re-appointed as a commissioned officer and not eligible for consideration by the board; therefore, his name has been deleted from the board’s official results and the selection memorandum voided.

13.  He also stated that they were aware that he, the applicant, had applied to the Army Board for Correction of Military Records (ABCMR) requesting a change to his WO and

commissioned status.  If the ABCMR rules in his favor his case will be forwarded to the Office of Promotions for evaluation for special board consideration.

14.  The applicant’s mandatory removal computation sheet shows his mandatory removal date as 8 May 2008 for a total of 28 years commissioned service from his initial date of appointment as a second lieutenant.

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers) specifies that mandatory selection boards will be convened each year to consider Reserve and ARNG officers for promotion to captain through lieutenant colonel.  They will also consider Reserve WO’s to grades CW3 and CW4 in an active status.

16.  The regulation also specifies that to be promoted to chief warrant officer grades, a WO must be commissioned under Title 10, United States Code (USC), section 12241 before or concurrent with promotion or designation.  Further, a WO’s name will be removed from a promotion list when that officer was not serving on active WO status or was in an active WO status in error at the time of consideration.  An officer and/or WO’s name that is removed from a promotion list will not be promoted.

17.  Army Regulation 135-155 also specifies that if an officer’s promotion is declared void, and if the authority that revokes the promotion determines that the officer had, in good faith worked in the higher grade, then that officer will be deemed to have served in the higher grade in a de facto status.  This period of de facto status will be from the date of the erroneous promotion until the date the officer received notice that it was void.    This will allow the officer to keep pay and allowances received at the higher grade.  An officer whose promotion has been announced will be notified immediately that the promotion was unauthorized.  Service during the period of de facto status is not creditable for retirement purposes and the officer may apply for such credit from the Army Board for Correction of Military Records.  Such application, however, does not guarantee that relief will be granted.  This section also specifies that if an officer is deemed to have served in the higher grade in de facto status and later attains promotable status during the period served in a de facto status, the promotion will be announced in orders of current date.  The officer’s date of rank will be as of the date of eligibility was attained in accordance with this regulation.

18.  This regulation also specifies that promotion consideration by a Special Selection Board (SSB) may only be based on erroneous non-consideration or material error that existed in the record at the time of consideration.

19.  Title 10, USC, section 12241 (Warrant Officers) specifies that appointments made in a permanent Reserve grade of chief warrant officer shall be made by commission by the Secretary concerned.

20.  Title 10, USC, section 14706 (Involuntary Separation) specifies that a Reserve officer’s years of service include all service of the officer as a commissioned officer of a uniformed service other than service as a WO.  Service as a WO is not included in computation for mandatory removal dates.

21.  A staff member of this Board contacted a member of the Office of Promotions, Reserve Components, PERSCOM, for their standardized procedures for determining adjusted dates of rank.  Using this standard computation the applicant’s date of rank for captain would be calculated by subtracting from his re-appointment date of 5 May 2000, the date of 1 March 1993, his appointment date in the COARNG as CW2.  This would equal 7 years, 2 months, and 4 days.  That time would then be added to his original date of rank for captain of 1 January 1984, to equal 5 March 1991, and this would be his adjusted date of rank for captain, 7 years (required MTIG time for promotion to major) is then added which becomes 4 March 1998, his MTIG date for promotion to major.  With a PED of 4 March 1998, he would be eligible for promotion consideration to major in accordance with applicable promotion rules subsequent to his re-appointment.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant is entitled to correction to his records to show that he was appointed in the Reserve as a captain effective 5 May 2000 with an adjusted date of rank for captain of 5 March 1991.  Based on the required 7 years time in grade his PED for major would be 4 March 1998; therefore he is eligible for the first appropriate board subsequent to his re-appointment. 

2.  The database system at AR-PERSCOM shows the applicant was accessed into the Reserve as a CW2 from 7 May 1998 until 5 May 2000.  There is insufficient evidence to support the applicant’s contentions that he served as a warrant officer from 8 March 1993 to 5 May 1998 and his date of rank for major should be 6 May 1998.   His records show he was accessed into the Reserve effective 7 May 1998 as a CW2 and served in that status until his transfer to a Reserve TPU as a captain effective 5 May 2000, without an adjustment to his date of rank for captain.  The error came when the database system erroneously continued to show his status as a CW2 and not as a captain.  During that time frame he was rated and paid as a captain.  Therefore, his records should be corrected to show such.  The applicant was also not notified until 2 years later that the database system at AR-PERSCOM did not correctly reflect that he had vacated his appointment as a captain when he executed an oath of office for warrant officer effective 1 March 1993.

3.  By law the applicant’s mandatory removal date should exclude his service as a WO from 8 March 1993 to 5 May 1998, a total of 5 years, 2 months and 4 days.  His current mandatory removal date of 8 May 2008 should be adjusted by his unit administrator to 12 July 2013.

4.  The applicant was granted de facto status for his erroneous promotion to major by the 1993 RCSB.  The applicant was allowed to keep all pay and allowances received from the date of the erroneous promotion until the date he received notice that his promotion had been voided.  His promotion to major was revoked; therefore, he is not entitled to correction to his date of rank for major to 6 May 1998, with entitlement to back pay and allowances.

5.  The applicant’s current OER for the period from 5 May 2001 to 4 May 2002 reflects his rank as major.  During this rating period he was considered a major based on the 1993 RCSB selection and subsequent promotion effective 10 October 2000.  The promotion was later determined to be erroneous and revoked effective 9 May 2002.  Therefore, from October 2000 through 9 May 2002, the applicant was recognized and paid as a major.  The applicant was separated from the COARNG in May 1998 as a WO and was not reappointed a Reserve commissioned officer; therefore, he is not entitled to correction to his OER’s received after May 1998 to reflect his service in the rank of major.  The applicant was not in a captain’s status when the 1993 RCSB convened and should not have been considered/promoted to major.  The promotion was voided effective 9 May 2002.  Therefore, he is not entitled to the correction of his current OER for his Enduring Freedom mobilization period to reflect his service in the grade of major.

6.  The applicant was reappointed in the Reserve as a captain effective 25 April 2003.  His promotion consideration by the 2003 WO RCSB was appropriately deleted as he was reappointed as a captain and no longer eligible for consideration by that board.

BOARD VOTE:

__jl____  ___ro___  ___le____  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  showing the individual concerned was reappointed in the Reserve as a captain effective 5 May 2000, with an adjusted date of rank for captain of 5 March 1991;

b.  by showing that his promotion eligibility date for major was 4 March 1998; and

c.  by submitting his records to a duly constituted special selection board as deemed appropriate for promotion consideration for major.

2.  That if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefore, with entitlement to back pay and allowances, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

3.  That if not selected, the applicant be so notified.

4.  That the request for adjustment of his mandatory removal date be referred to his unit administrator for administrative correction.

5.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction to his date of rank for major with entitlement to back pay and allowances, correction to his officer evaluation reports ending after May 1998, and his current Enduring Freedom mobilization period.  

		___Joann Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090992	
SUFFIX		
RECON		
DATE BOARDED	20040212	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.05	
3.		
4.		
5.		
6.