ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20180000976 APPLICANT REQUESTS: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect Chief Warrant Officer Five (CW5) * retroactive pay from Master Warrant Officer Four (MW4) to CW5 from 24 November 1992 until his retirement * retroactive CW5 pay from his retirement until present APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Promotion to MW4 * Retirement Orders * Officer Evaluation Report (OER) * Officer Record Brief (ORB) * DD Form 214 * self-authored letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * he was promoted to the temporary rank of CW4 with a date of rank (DOR) of 1 January 1987 * his permanent DOR for CW4 was 23 April 1988 * US Army Policy is to insure the US Army has compassion of all its Soldiers regardless of their status * he was selected by a board to attend Master Warrant Officer Training Course (MWOTC) in 1992 * he completed the course and was promoted to the new rank of MW4 on 24 November 1992 * the understanding was when the rank of CW5 was approved all MW4s would integrate to the rank of CW5 and receive the updated pay * the board failed to promote him to the rank of CW5 * his official Army record lists him as CW4 but his rank is MW4 and should be immediately converted to CW5 * he should receive consideration of back pay from MW4 to CW5 from November 1992 * the original Department of Defense plan was to adopt the MW4 insignia to CW5 * the Army Chief of Staff approved the continued use of the MW4 insignia as the CW5 insignia on 28 March 1992 * during this time period, the Army was confused about what action should be taken for the approval of the CW5 rank * his understanding was upon approval all MW4s would be changed over to the new pay grade of CW5 * the US Army approved the rank of CW5 to the new appropriate pay scale on 23 March 2004 * he recommends that all retired MW4s be promoted to CW5 effective 23 March 2004 * they should be awarded back pay * on the approval of this action, the following month all retires receive CW5 pay * all military records should be changed to reflect the new rank of CW5 3. In a self-authored letter to the Board, the applicant states: * the letter is address his selection to the MW4 program in 1991 * he completed the course and was promoted to MW4 * the DOR was 24 November 1992 * he provides a copy of the order for the Board's review * his understanding was when the new CW5 rank was approved the MW4 personnel would be grandfathered to the new rank * at the time of his retirement, his ID card rank was listed as MW4 on 31 March 1995 * the last time he updated his ID card, his rank was listed as CW4 because MW4 was no longer used * this made him feel like he had been demoted in rank * he had a great Army career of 29 years, 9 months, and 14 days on active duty * most of his assignments were with the troop units like battalions, brigades, and divisions * he was highly decorated with more than over 18 meritorious and commendation awards including the Bronze Star Medal for Vietnam * he received the Legion of Merit at his retirement for his almost 30 years of service * all of his OERs were at the top and he provides his last OER for the Board's consideration * he also provides a copy of his ORB * he feels the action of not promoting him to the rank of CW5 after activation is a breach of the agreement * he was selected by the board after the completion of the MWOC to the new rank of MW4 * he pinned on the new insignia * this is truly an injustice to him and these action have been overlooked too long * this should be corrected immediately by promoting him to CW5 * he would request the same action for his fellow MW4s that were not promoted to CW5 * he would request that his DOR be the same as his promotion to MW4, 24 November 1992 * he also deserves back pay, difference between CW4 and CW3 for the last three years of his active duty service and from his retirement date in April 1995 4. The applicant’s service records contain, and the applicant provides Orders 329- 00207, dated 24 November 1992, promoting him to the rank of MW4. His DOR on the order is 1 January 1987 and the action is lateral designation. The rank terminated is CW4. 5. The applicant's retirement orders are effective 31 March 1995. He retired in the rank of MW4. The provided OER states, he should be promoted to MW5 immediately. His ORB shows he completed MWOTC in 1992. 6. The applicant provided a microfiche of his records. The microfiche was reviewed by the ABCMR analyst and all pertinent documents contained within the microfiche regarding the applicant's request for correction were provided by the applicant. His DD Form 214 lists his rank as MW4 and his pay grade as W4. 7. 10 USC, Chapter 33A, Sections 571 through 577 covers warrant officers grades and promotions and are effective Feb. 1, 1992. a. Section 571 states that no appointments to the grade of chief warrant officer, W-5, will be made to exceed 5 percent of the warrant officers currently holding that grade. b. Section 8. Public Law 102-190, 102d Congress, states: a. Certain officers to be considered as recommended for promotion. A regular warrant officer of the Armed Forces who on 1 February 1992 is on active duty and: * is serving in a temporary grade below chief warrant officer, W-5, that is higher than his permanent grade; * is on a list of officers recommended for promotion to a temporary grade below chief warrant officer, W-5; or * is on a list of officers recommended for promotion to a permanent grade higher than the grade in which he is serving; shall be considered to have been recommended by a board convened under section 573 of title 10, United States Code (USC), as added by this title, for promotion to the permanent grade equivalent to the grade in which he is serving or for which he has been recommended for promotion, as the case may be. 8. See References for Title 10 USC covering the requirement for centralized selection boards for promotion to CW5. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found insufficient evidence to grant relief. The Board denied the applicant’s request to correct his record to show that he was promoted to CW-5. According to 10 USC 573, promotion to CW-5 requires selection via a centralized board to recommend for promotion to the next higher warrant officer grade warrant officers on the warrant officer active-duty list who are in the grade of chief warrant officer W-4 (including MW-4s). The total number of CW-5s selected for promotion in any given year may not exceed five percent of the current CW-5 on active duty. The record is absent and the applicant provides no results of a selection board showing that he had been selected for the grade of CW-5 or promotion orders to the grade of CW-5. Therefore, the board found no basis to grant relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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, 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. 2. Public Law 102-190, 102d Congress, states: a. Certain officers to be considered as recommended for promotion. A regular warrant officer of the Armed Forces who on 1 February 1992 is on active duty and: * is serving in a temporary grade below chief warrant officer, W-5, that is higher than his permanent grade; * is on a list of officers recommended for promotion to a temporary grade below chief warrant officer, W-5; or * is on a list of officers recommended for promotion to a permanent grade higher than the grade in which he is serving; shall be considered to have been recommended by a board convened under section 573 of title 10, United States Code, as added by this title, for promotion to the permanent grade equivalent to the grade in which he is serving or for which he has been recommended for promotion, as the case may be. 3. Title 10 US Code 571 (Warrant Officers: grades) effective 1 February 1992, states: a. The regular warrant officer grades in the armed forces corresponding to the pay grades prescribed for warrant officers by section 201(b) of title 37 are as follows: Chief warrant officer, W–5. Chief warrant officer, W–4. Chief warrant officer, W–3. Chief warrant officer, W–2. Warrant officer, W–1. b. Appointments in the grade of regular warrant officer, W–1, shall be made by warrant, except that with respect to an armed force under the jurisdiction of the Secretary of a military department, the Secretary concerned may provide by regulation that appointments in that grade in that armed force shall be made by commission. Appointments in regular chief warrant officer grades shall be made by commission by the President, and appointments (whether by warrant or commission) in the grade of regular warrant officer, W–1, shall be made by the President, except that appointments in that grade in the Coast Guard shall be made by the Secretary concerned. c. An appointment may not be made in any of the armed forces in the regular warrant officer grade of chief warrant officer, W–5, if the appointment would result in more than 5 percent of the warrant officers of that armed force on active duty being in the grade of chief warrant officer, W–5. In computing the limitation prescribed in the preceding sentence, there shall be excluded warrant officers described in section 582 of this title. 5. Title 10 USC 573 (Convening of Selection Boards) states, a. Whenever the Secretary concerned determines that the needs of the service so require, he shall convene a selection board to recommend for promotion to the next higher warrant officer grade warrant officers on the warrant officer active-duty list who are in the grade of chief warrant officer, W–2, chief warrant officer, W–3, or chief warrant officer, W–4. b. Warrant officers serving on the warrant officer active-duty list in the grade of warrant officer, W–1, shall be promoted to the grade of chief warrant officer, W–2, in accordance with regulations prescribed by the Secretary concerned. Such regulations shall require that an officer have served not less than 18 months on active duty in the grade of warrant officer, W–1, before promotion to the grade of warrant officer, W–2. c. A selection board shall consist of five or more officers who are on the active-duty list of the same armed force as the warrant officers under consideration by the board. At least five members of a selection board must be serving in a permanent grade above major or lieutenant commander. The Secretary concerned may appoint warrant officers, senior in grade to those under consideration, as additional members of the selection board. If warrant officers are appointed members of the selection board and if competitive categories have been established by the Secretary under section 574(b) of this title, at least one must be appointed from each warrant officer competitive category under consideration by the board, unless there is an insufficient number of warrant officers in the competitive category concerned who are senior in grade to those under consideration and qualified, as determined by the Secretary concerned, to be appointed as additional members of the board. d. The Secretary concerned may convene selection boards to recommend regular warrant officers for continuation on active duty under section 580 of this title and for retirement under section 581 of this title. e. When reserve warrant officers of one of the armed forces are to be considered by a selection board convened under subsection (a), the membership of the board shall, if practicable, include at least one reserve officer of that armed force, with the exact number of reserve officers to be determined by the Secretary concerned. f. No officer may serve on two consecutive boards under this section, if the second board considers any warrant officer who was considered by the first board. g. The Secretary concerned shall prescribe all other matters relating to the functions and duties of the boards, including the number of members constituting a quorum, and instructions concerning notice of convening of boards and communications with boards. 3. Army Regulation 624-100 (Promotions, Demotions and Reductions of Commissioned officers and Warrant Officers on Active Duty) prescribes the policies and procedures for temporary promotion in the Army of the United States of commissioned officers and warrant officers on active duty, and for the promotion of Regular Amy officers in their permanent grades. Paragraph 6-11 states, precedence and relative rank among warrant officers, whether or not on active duty, is based first on grade. Rank among warrant officers of the same grade is determined by comparing DORs. A warrant officer whose DOR in a grade and component is earlier than the DOR of another warrant officer in the same grade and component is senior to that officer. The exception is those personnel in the grade CW4 who have been designated Master Warrant Officer Four (MW4). They are senior to all other warrant officers in grade CW4 who have not been so designated. The DOR of a CW4 designated MW4 is the AUS CW4 DOR held at the time of designation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000976 5