MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  28 September 2000
	DOCKET NUMBER:  AR1999034530

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. Ernest M. Willcher		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his grade at retirement be corrected to captain instead of CW3.

APPLICANT STATES:  That he served on active duty as a commissioned officer for over 11 years.  He retained his USAR commission and was promoted to USAR major effective 24 March 1989.  He returned to active duty in grade WO1 effective 10 September 1989 and at no time did he resign his USAR commission. In fact he continued to receive correspondence as a USAR major.  When he applied for voluntary retirement as a major it was denied and he had to reapply as a CW3, which was granted.  He contends that he should have been retired in the highest grade he held on active duty.  He would not have returned to active duty if he had known he would be stripped of his Reserve commission.  He submits copies of correspondence from the Army Reserve Personnel Command (AR-PERSCOM) in support of his application.

COUNSEL CONTENDS:  That the applicant should be retired in the grade of captain under Title 10, USC, section 1370, not section 1371 because he served previously on active duty as a captain.  The applicant was an “exception to the general rule because he was entitled to a higher retired grade under other provision of law.”  He believes that the applicant is similarly situated as an enlisted member who retires with more than 10 years prior active service as a commissioned officer and is allowed to retire as an officer.  If the applicant’s “Reserve commission disappeared by accident or mistake, that is an error which this Board can easily rectify.”

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was commissioned a USAR second lieutenant and entered active duty on 31 October 1976.  He continued on active duty and was promoted to captain effective 31 October 1980.  He was separated from active duty as a USAR captain on 1 September 1988 for failure of selection for promotion.  He was transferred to the USAR with 11 years, 10 months, and 1 day active Federal commissioned service.  Effective 24 March 1989 he was promoted to USAR major, not on active duty.

On 4 August 1989 the applicant was voluntarily ordered to active duty as a USAR warrant officer in grade WO1 effective 15 September 1989.  The active duty orders states that “individual is relieved from current status on the day preceding the effective date of active duty.”  (The applicant’s current status was as a USAR major in the Reinforcement Control Group).  Effective 1 November 1995 he was promoted to CW3.  The promotion order states that USAR officers who entered active duty after 30 September 1987 must execute an RA oath of office or be released from active duty.  The applicant executed his RA oath of office on 16 November 1995.  He executed it again for an unknown event on 23 June 1997.
On 11 December 1997 the applicant requested voluntary retirement after completion of over 20 years active Federal service.  He requested retirement in the grade of major.  In a 30 January 1998 memorandum the Total Army Personnel Command (PERSCOM) denied his request.  The PERSCOM noted that he did not currently hold a USAR commission as a major but after he attained a total of 30 years service he could request advancement on the retired list to his highest grade held on active duty.

Although not in the available record, the applicant stated that he applied again for retirement, this time in grade CW3, and his request was approved.  An automated form for service computation shows his prior active duty commissioned service and USAR service.  Page 2 correctly reflects that he was awarded 15 retirement points for USAR membership from September 1988 to September 1989.  He received no additional USAR points after that period.

Effective 30 November 1998 the applicant was separated from active duty in grade CW3, by reason of sufficient service for retirement, and transferred to the Retired Reserve on 1 December 1998.

Title 10, USC, section 1371 provides that a warrant officer will retire in the permanent warrant officer grade that he held on the day before the date of his retirement.  It also provides for retirement in any higher warrant officer grade in which he served on active duty for more than 30 days.

Title 10, USC, section 3964 provides that warrant officers may be advanced on the retired list to the highest grade satisfactorily served on active duty when his active service plus service on the retired list totals 30 years.

The documents submitted by the applicant include a 7 December 1990 Chronological Statement of Retirement Points showing his current grade as major and crediting him with membership points for the retirement years ending on 29 July 1989 and 29 July 1990.  The second document is a 4 March 1991 order requiring him to report for a flight physical for a period not to exceed 1 day. The order shows that he was a USAR major assigned to the Reinforcement Control Group.  The third document is a 21 October 1991 order which assigned him to Germany upon declaration of full mobilization.  It shows that he was a USAR major in the Individual Ready Reserve.

Army Regulation 600-39 provided the policy for the Dual Component Program for those members who held dual status in both the Regular Army and the USAR.  The eligibility criteria for application for dual component status included Regular Army warrant officers who had not been twice passed over for promotion or otherwise released from active duty because of failure to be promoted to a higher commissioned grade.  There was no evidence of record that the applicant ever applied for or was granted status in the Dual Component Program.
Additionally, in April 1989, 4 months prior to the applicant’s return to active duty as a USAR warrant officer, the Dual Component Program was closed.  Only those participants already in the program were grandfathered to continue participation.

In similar cases previously before this Board, the Office of The Judge Advocate General has stated that, on or after 1 January 1953, concurrent or multiple memberships in the Army Reserve as a commissioned officer, warrant officer, and/or enlisted member are incompatible and improper regardless of whether the member concerned is on active duty in any of these statuses.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The order which placed the applicant on active duty as a USAR warrant officer clearly and correctly stated that he was relieved from his current status on the day preceding his active duty date.  This terminated his status as a USAR major because no individual can serve in two different USAR statuses simultaneously.

2.  Although the applicant may have temporarily believed that he remained a USAR major while on active duty as a USAR warrant officer, he did not meet the basic eligibility requirements because he had been previously released from active duty for failure of promotion selection.  Additionally the Dual Component Program had been closed to new accessions 4 months prior to his entry on active duty.

3.  The fact that AR-PERSCOM failed to immediately terminate his status as a USAR major and purge their files does not automatically convey to the applicant a status prohibited by law.  The error was corrected as demonstrated by the termination of the award of retirement points after July 1989.

4.  The applicant’s contention that he would not have returned to active duty to complete a career, which he had been previously denied as a commissioned officer, if he had known that he would lose his commissioned officer status, is without merit.  Upon completion of 30 years combined active service and service on the retired list the applicant may request advancement on the retired list to the highest grade in which he served on active duty.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__ro____  __dh____  __ew____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999034530	
SUFFIX		
RECON		
DATE BOARDED	20000928	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.