ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20170003748 APPLICANT REQUESTS: * correction to his initial retired grade of sergeant first class (SFC)/E-7 to warrant officer two (W2)/CW2, with an effective date of 1 November 2007 through 9 June 2017 * retroactive pay for the retired grade of CW2, from 1 November 2007 through 9 June 2017 * advance his grade to captain (CPT)/O-3 on the retired list, as of 10 June 2017 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Review Boards Agency (ARBA) memorandum, dated 3 September 2008 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080017144 on 7 January 2009. 2. The applicant states, in effect, the action to correct his initial retired grade from SFC to CW2 was never completed by any support organization. He served continuously on active duty from 20 August 1987 through 31 October 2007. The time in grade (TIG) requirement for retirement at the current grade for a warrant officer is 31 or more days of service to retire at the higher WO grade, under the provisions of Section 1371, Title 10. He was a CW2 for 10 months and 23 days. 3. The applicant provides a copy of the memorandum from the Army Review Boards Agency, Subject: 30-year Grade Determination, dated 3 September 2008, which reflects that after a thorough review of his Official Military Personnel File, the Board determined the highest grade in which he served satisfactorily for the purpose of computation of retired pay was O-3E (Captain). 4. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 20 August 1987 in the military occupational specialty (MOS) personnel services specialist (75H). b. DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period of 20 August 1987 through 26 January 1999, shows he was discharged under the provisions of Army Regulation (AR) 635-200, paragraph 16-1A(1), to accept commission or warrant in the Army, with the character of service of honorable. c. DD Form 214, covering the period of 27 January 1999 through 20 December 2001, shows he was released from active duty under the provisions of AR 600-8-24, paragraph 2-5, miscellaneous/general reasons, with the character of service of honorable. d. On 27 November 2006, he tendered his unqualified resignation from the Army under the provisions of AR 600-8-24, chapter 3, section II, to be effective on 29 October 2007. He requested for retirement at the highest qualified grade. e. On 12 December 2006, his commander recommended approval of the applicant’s request for unqualified resignation for the purpose of voluntary retirement in highest grade held. f. U.S. Army Human Resources Command (HRC), Force Alignment Division, memorandum, dated 1 March 2007, approved his request for reenlistment for the purpose of retirement as an enlisted member. Paragraph 2 states, “Soldier is authorized reenlistment under the provisions of AR 601-280, Table E-1, on 30 October 2007, for a period of 2 years for the purpose of attaining retirement eligibility.” g. DD Form 214, covering the period of 21 December 2001 through 29 October 2007, reflects he was discharged from the Regular Army as a captain/O-3, under the provisions of AR 600-8-24, paragraph 3-5, miscellaneous/general reasons, with the character of service of honorable. h. DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States), reflects he reenlisted on 30 October 2007 for 2 years, beginning in pay grade E-7. i. Orders 303-0313, dated 30 October 2007, reflects he was released from active duty and placed on the retired list, with an effective date of 31 October 2007, the retired grade of SFC/E-7, and date placed on the retirement list as 1 November 2007. j. DD Form 214, covering the period of 30 October 2007 through 31 October 2007, shows he was retired under the provisions of AR 635-200, Chapter 12, sufficient service for retirement, with a character of service of honorable. 5. Title 10 USC, section 3964 states, each retired member of the Army covered by subsection (b) warrant officers who at the time of retirement, are serving on active duty is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Army. 6. Title 10 USC, section 3961 states, unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found some relief is warranted. The applicant’s contentions were carefully considered. After a thorough review of his record, the AGDRB determined the highest rank in which he served satisfactorily for the purpose of retired pay is CPT/O-3E. Subsequent to the AGDRB’s finding, there is no evidence that shows HRC provided a date in which he became eligible for advancement to CPT on the retired list. The applicant's rank at the time of his retirement was SFC. His DD Form 214 correctly shows the rank at which he was retired. However, the AGDRB provided the applicant relief on 3 September 2008 notifying him of a rank change when his active service plus his service on the retired list totals 30 years. His record shows he totaled 20 years, 2 months, and 10 days of active service when he retired on 31 October 2007. Therefore, he could have been advanced on the retired list after 9 years, 10 months, and 20 days on 21 September 2017. The Board determined to grant relief by advancing him on the retired list at the rank of CPT for retired pay. The DD Form 214 is not updated as a result of this change as the form reflects the conditions and circumstances that existed at the time it was created. Title 10 USC 1371 provides for warrant officers, stating unless entitled to a higher retired grade under some other provisions of law, a warrant officer shall be retired in the highest regular or reserve warrant officer grade in which the warrant officer served satisfactorily, as determined by the Secretary concerned. An amendment to the public law added 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. There is no evidence that shows a grade determination was made considering placing him on the retired list as a warrant officer. Based upon Title 10 USC 1371, the Board determined he satisfactorily served at the rank of chief warrant officer-two (CW2)/W-2. Therefore, his DD Form 214 should show his rank as CW2 in the remarks section of the DD Form 214 effective 1 November 2007 (date placed on the retired list). In addition, the Board agreed he should receive back pay for being on the retired list as a CW2 from 1 November 2007 through 20 September 2017. The Board determined there is insufficient evidence to show the effective dates of the requested relief to show 10 June 2017, as he would have only obtained 29 years, 9 months and 20 days of the required active and retired computation time instead of the 30-year requirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20080017144 on 7 January 2009. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending block 18 (Remarks) on his DD Form 214 for the period ending 31 October 2007 by deleting “Retired list Grade SFC” and replacing it with the entry “Retired List Grade CW2”; and a. paying him retroactive retired back pay at the rank of CW2 from 1 November 2007 through 20 September 2017; and b. providing him with official correspondence from U.S. Army Human Resources Command showing he served satisfactorily at the rank of captain (CPT)/O-3E for the purpose of retired pay effective 21 September 2017. The correspondence will notify him that he is eligible to receive a new identification card, and notify the Defense Finance and Accounting Service (DFAS) of the advancement. DFAS should also determine retroactive retired pay at the pay rate of a CPT based upon the effective date of advancement. 2. The Board further determined 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 (list what was denied). * correction to his initial retired grade of SFC to CW2 effective 1 November 2007 through 9 June 2017 * retroactive pay for the retired grade of CW2, through 9 June 2017; and * advancing his grade to CPT on the retired list effective 10 June 2017 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10 USC, section 3961 states, unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement. 3. Title 10, U.S. Code, section 3964 (Higher Grade after 30 years of Service: Warrant Officers and Enlisted Members), states: a. Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty as determined by the Secretary of the Army. b. This section applies to: (1) warrant officers of the Army; (2) enlisted members of the Regular Army; and (3) Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. In pertinent part, it provides that retired Soldiers, when their active service plus service on the retired list total 30 years, are entitled to be advanced on the retired list to the highest grade in which they satisfactorily served on active duty. When these Soldiers complete 30 years of service, their military personnel records are reviewed to determine whether service in the higher grade was satisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003748 6 1