BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090004259 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any). 

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his pay grade from warrant officer one (WO1) back to chief warrant officer two (CW2).

2.  The applicant states that he was permanently promoted to CW2 but his retirement orders state that he is a WO1.  He states that he was told by his chain-of-command that the Secretary of the Army could make the change but he was given no reason for the demotion.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), Orders Number 48-1-A-81, and Orders Number 203-93 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant's records show that he had completed 9 years, 9 months, and 
18 days of prior enlisted service before being appointed as a warrant officer on 16 December 1981.

3.  Orders Number 48-1-A-82, US Total Army Personnel Agency (Prov), Alexandria, VA (now known as Human Resources Command), dated
2 November 1987, show that the applicant was appointed as a CW2 in the Regular Army.

4.  Orders Number 203-93, Human Resources Command, dated 7 December 1988, show that the applicant's permanent grade was determined to be CW2 with a date of rank of 13 June 1985. 

5.  Orders Number S26-10, Human Resources Command, Alexandria, VA, dated 7 February 1992, show that the applicant was to be retired in the grade of rank of WO1/W-1 effective 29 February 1992.

6.  On 29 February 1992, the applicant retired honorably after completing a total of 20 years and 3 days of active duty service.  Item 4a (Grade, Rate, or Rank) of the applicant's DD Form 214 dated 29 February 1992, shows his rank as "CW2" and item 4B ( pay grade) shows his pay grade as "W-2."

7.  Army Regulation 635-100 (Officer Personnel), in effect at the time, provided the authority for the separation of commissioned and warrant officers from the Active Army.  Chapter 4, in pertinent part, provided that unless entitled to a higher retired 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's orders announcing his retirement contains an incorrect retired grade of rank.  It appears that this entry was the result of an administrative error made during processing.  Therefore, it would be appropriate to amend the applicant's retirement Order Number S26-10, dated 7 February 1992, to show his correct retired grade of rank as CW2/W-2.  

2.  Based on the applicant's entitlement to the correction of his grade of rank on the effective date of his retirement, he is entitled to any difference in pay that the correction will necessitate.
BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_________  _______  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
      
      a.  amending the Retired Grade of Rank on Orders Number S26-10, dated 7 February 1992, to read CW2/W2; and 

		b. based on the above corrections, the Defense Finance and Accounting Service should audit the applicant's retired pay account and pay him any difference in retired pay as a result of this correction.




      ____________x_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20090004259



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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