BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150017017 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150017017 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________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. BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150017017 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, in effect, correction of his military records to show he was placed on the Retired List in the retired grade of chief warrant officer three (CW3) effective 16 April 1992 with retroactive back pay and allowances. 2. The applicant states: a. He is trying to determine what pay and benefits he is authorized per his CW3 promotion orders, dated 21 February 1992, and the effective date for the pay and benefits. b. In October 2015, he contacted a local Retirement Services Officer (RSO) to find out how he would receive the pay increase for his promotion to CW3. He wanted to ensure he could wear the rank of CW3 on his military uniform when he attended formal functions. The RSO told him it appeared he had been a CW3 since 16 April 1992 and he might be entitled to back pay for the difference between CW2 and CW3 since 16 April 1992. The RSO also told him that instead of a back pay date of 16 April 1992, the date might be when he reached 30 years of combined active duty and "Inactive Ready Reserve [Individual Ready Reserve] (IRR)" service. c. The RSO asked him why he waited so long to check the promotion orders with the Army. He told the RSO that he brought it up with his Fort Riley RSO in February 1992 and was told he was "grandfathered" under the old promotion/ retirement system since he enlisted in 1967. By virtue of that, he would be placed on the IRR rolls in the rank of CW3. In the event he was recalled to active duty, it would be in the rank of CW3. He was also told he would be permanently promoted to CW3 when he reached age 62, he could apply for a new identification card reflecting his rank as CW3, and his retired pay would be increased from CW2 to CW3. It was his understanding that age 62 is the final retirement age for warrant officers without a requested and approved exception to Army age limits. d. He never thought there was a possibility that he should be receiving CW3 pay since 16 April 1992. In the 23 years since he retired from active duty, he had simply forgotten about the promotion orders. Since retiring in 1992, he has moved four times and worked for 13 different employers, so his personal records were in shambles. In 7 of the last 12 years he has been employed in Iraq, Saudi Arabia, and Afghanistan under U.S. Government contracts. After his last move in 2015, he finally started cleaning up and organizing his records and he found a copy of the promotion orders. 3. The applicant provides: * promotion memorandum, dated 21 February 1992 * email from the Defense Finance and Accounting Service 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. Having prior enlisted service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 19 January 1973 and remained on active duty through continuous reenlistments. He was discharged from the Regular Army in the rank of sergeant first class on 10 March 1986 to accept a Reserve warrant officer appointment with concurrent orders to active duty. He completed 10 years, 3 months, and 3 days of net active service during this period for a total of 16 years and 1 day of active service. 3. He was ordered to active duty in the Reserve rank of chief warrant officer two (CW2) effective 11 March 1986 for a period of 72 months (6 years). 4. His DA Form 3713 (Data for Retired Pay), dated 22 January 1992, shows in: * item 3 (Retired Grade) – CW2 * item 8 (Highest Grade Attained) – CW2 5. U.S. Total Army Personnel Command Orders S14-24, dated 22 January 1992, retired him from active duty in the Reserve rank of CW2 effective 31 March 1992 and placed him on the Retired List in the rank of CW2 effective 1 April 1992. 6. U.S. Total Army Personnel Command memorandum, dated 21 February 1992, subject: Promotion as a Reserve Warrant Officer of the Army (Army Regulation 135-155), announced his promotion to CW3 effective 16 April 1992. 7. He retired for length of service effective 31 March 1992. He completed 22 years and 21 days of total active service. 8. He reached age 60 on 3 February 2010 and age 62 on 3 February 2012. REFERENCES: 1. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states an officer removed from an active status before the promotion is final (the effective date of promotion) will be removed from the promotion list. 2. Army Regulation 635-100 (Personnel Separations – Officer Personnel) states a warrant officer retires in the permanent Regular or Reserve warrant officer grade, if any, that he or she held on the day before the date of retirement, or in any higher warrant officer grade in which he or she served on active duty satisfactorily for more than 30 days as determined by the Secretary of the Army. DISCUSSION: 1. The applicant requests correction of his military records to show he was placed on the Retired List in the retired grade of CW3 effective 16 April 1992 with retroactive back pay and allowances. 2. The evidence of record shows: a. he retired from active duty in the Reserve rank of CW2 effective 31 March 1992; b. he was placed on the Retired List in the rank of CW2 effective 1 April 1992; c. he was not transferred to the Individual Ready Reserve and he was not in an active status; d. he immediately began drawing retired pay; and e. his promotion memorandum to CW3 was published with an effective date of promotion of 16 April 1992, 17 days after he retired. 3. It appears that his promotion memorandum was erroneously published after publication of his retirement orders, but prior to his effective date of retirement. 4. It further appears that he was misinformed by the RSOs in 1992 and 2015. He retired in the rank of CW2 and was properly placed on the Retired List in the retired rank of CW2, the highest grade he held and satisfactorily served in on active duty. 5. The applicant was not in an active status on 16 April 1992 for promotion to CW3. 6. Had he or the RSOs contacted the promotion authority (U.S. Total Army Personnel Command Office of Promotions, Reserve Components), the promotion memorandum would have been rescinded, as he was not eligible for promotion after he retired. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017017 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017017 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2