The controversy here involves the proper interpretation of the Warrant Officer Act of 1954 (hereafter referred to as the “Act”) 68 Stat. 157-168, 10 U.S.C. §§ 555-565. (All references hereafter will be to the Statutes-at-Large since the Code does not report the entire Act).
Plaintiff, a former warrant Officer, alleges that the Secretary of the Army erroneously interpreted the Act, and as a consequence, forced him to revert to enlisted status in order to avoid an involuntary separation from the Army. The Army Board for Correction of Military Kecords (hereafter referred to as “ABCMB”) denied plaintiff’s appeal. We find the result obtained by the Army acceptable under a proper interpretation of the law.
The Warrant Officer Act, promulgated May 29, 1954, was intended by Congress to provide a statutory career plan for warrant officers in all services similar to the plan for Begular commissioned officers. The Act gave an opportunity for advancement of qualified Begular Army warrant officers through four grades, CWO W-4; CWO W-3; CWO W-2 and CWO W-l (hereafter referred to as W-4, W-3, W-2 and W-l, respectively), whereas prior to the Act there had been only two grades. The primary need for the Act, as recognized by Congress, was one of “vitalizing the warrant officer program of all the services by establishing a system of mandatory consideration for promotion and elimination from active service in the event that the warrant officer fails twice to be selected for promotion.” Senate Beport, 83d Cong., 2d Sess., TI.S. Code Congressional and Administrative News, p. 2282 (1954).
On November 15, 1948, while serving as an officer in the Army of the United States (AUS), plaintiff was appointed [792] Warrant Officer Junior Grade in the Regular Army, with, date of rank (hereafter referred to as “D/R”) as of that date. Subsequently, under the provisions of the Career Compensation Act of 1949 (63 Stat. 802,37 U.S.C. § 232) (1952),, plaintiff’s D/R (as was the D/R of all other warrant officers) was changed to October 1,1949.
Since the purpose of the Warrant Officer Act, passed in 1954, was to redistribute all of the approximate 5,000 warrant officers into the four newly defined military grades, it necessarily affected plaintiff. Nevertheless, plaintiff was one of 535 warrant officers who were not redistributed upward by the redistribution board, but instead, retained their permanent grade of W-l. Plaintiff was notified of this decision by letter dated November 26,1954.
Plaintiff and 119 other W-ls were then immediately considered for promotion to W-2 by a selection board which was also authorized by the Act. Sixty-six of them, including plaintiff, were promoted to W-2 on February 24, 1955 with D/R as of that date.
Thereafter, one of the 66 asked for a change in his D/R in order that it reflect his entire record of service duty prior to his promotion to W-2. This would enable him to be considered earlier for a promotion to W-3. The Secretary of the Army granted the request and backdated his D/R. In fact, the Army changed the D/R of all 66 officers, including plaintiff’s, from February 24, 1955 back to October 1, 1952. (This retrodating of plaintiff’s D/R is the exact focus of plaintiff’s attack, and the reasons therefor will be discussed shortly.)
By reason of this change in the D/R, plaintiff and the other 65 officers were considered for promotion to W-3 on October 1, 1958 (i.e., six years after the revised D/R, but only 3% years after the original D/R). Some were selected and promoted, plaintiff and others were not. In 1959 plaintiff was again considered for promotion and again not selected. As plaintiff would have faced release from active duty because of this second pass-over (by virtue of sec. 13 of the Act, 68 Stat. 162), he resigned his warrant to enlist in the Regular Army in order to complete the necessary time for longevity retirement. He was retired by reason of physical disability on July 8,1964.
[793] The sole issue here is whether the Secretary of the Army had the statutory authority to set plaintiff’s D/B. for his promotion to W-2 when he did, nm., 2% years earlier than the actual date of promotion to W-2. Plaintiff claims that he was denied the full six-year “sanctuary” for W-2s, which the statute explicitly affords, and consequently had not obtained sufficient experience to be able to earn the promotion to W-3. We hold that the Secretary did have such authority.
To reiterate a point we mentioned earlier, under the provisions of the Career Compensation Act of 1949, supra, all warrant officers then on duty, irrespective of their prior service, were given a D/B of October 1, 1949 (the effective date of the Act). Based on this statutorily assigned D/B, plaintiff had accrued approximately five years of prior service by December 15, 1954, at which time the first selection board under the new statutory procedure was convening for the purpose of considering promotions. As it is agreed that plaintiff’s service credit was, at the very least, as great as the three years a warrant officer is allowed to remain in rank W-l, it became mandatory by virtue of sec. 9 (a) of the Act, supra, for his promotion to be considered by the convening board. His promotion to W-2 was approved by this board with a D/B of February 24, 1955. As of that date, plaintiff had approximately 5% years of service duty as a warrant officer. Both plaintiff and defendant agree that the Army Selection Board was correct in considering at least three years out of a possible 5% years of service duty as a credit for purposes of promotion. This point is not in dispute. The question that remains, however, is whether the remaining 21/3 years of prior service duty was also used up at this time
Footnotes
Durfee, Judge,
delivered the opinion of the court:
The controversy here involves the proper interpretation of the Warrant Officer Act of 1954 (hereafter referred to as the “Act”) 68 Stat. 157-168, 10 U.S.C. §§ 555-565. (All references hereafter will be to the Statutes-at-Large since the Code does not report the entire Act).
Plaintiff, a former warrant Officer, alleges that the Secretary of the Army erroneously interpreted the Act, and as a consequence, forced him to revert to enlisted status in order to avoid an involuntary separation from the Army. The Army Board for Correction of Military Kecords (hereafter referred to as “ABCMB”) denied plaintiff’s appeal. We find the result obtained by the Army acceptable under a proper interpretation of the law.
The Warrant Officer Act, promulgated May 29, 1954, was intended by Congress to provide a statutory career plan for warrant officers in all services similar to the plan for Begular commissioned officers. The Act gave an opportunity for advancement of qualified Begular Army warrant officers through four grades, CWO W-4; CWO W-3; CWO W-2 and CWO W-l (hereafter referred to as W-4, W-3, W-2 and W-l, respectively), whereas prior to the Act there had been only two grades. The primary need for the Act, as recognized by Congress, was one of “vitalizing the warrant officer program of all the services by establishing a system of mandatory consideration for promotion and elimination from active service in the event that the warrant officer fails twice to be selected for promotion.” Senate Beport, 83d Cong., 2d Sess., TI.S. Code Congressional and Administrative News, p. 2282 (1954).
On November 15, 1948, while serving as an officer in the Army of the United States (AUS), plaintiff was appointed [792] Warrant Officer Junior Grade in the Regular Army, with, date of rank (hereafter referred to as “D/R”) as of that date. Subsequently, under the provisions of the Career Compensation Act of 1949 (63 Stat. 802,37 U.S.C. § 232) (1952),, plaintiff’s D/R (as was the D/R of all other warrant officers) was changed to October 1,1949.
Since the purpose of the Warrant Officer Act, passed in 1954, was to redistribute all of the approximate 5,000 warrant officers into the four newly defined military grades, it necessarily affected plaintiff. Nevertheless, plaintiff was one of 535 warrant officers who were not redistributed upward by the redistribution board, but instead, retained their permanent grade of W-l. Plaintiff was notified of this decision by letter dated November 26,1954.
Plaintiff and 119 other W-ls were then immediately considered for promotion to W-2 by a selection board which was also authorized by the Act. Sixty-six of them, including plaintiff, were promoted to W-2 on February 24, 1955 with D/R as of that date.
Thereafter, one of the 66 asked for a change in his D/R in order that it reflect his entire record of service duty prior to his promotion to W-2. This would enable him to be considered earlier for a promotion to W-3. The Secretary of the Army granted the request and backdated his D/R. In fact, the Army changed the D/R of all 66 officers, including plaintiff’s, from February 24, 1955 back to October 1, 1952. (This retrodating of plaintiff’s D/R is the exact focus of plaintiff’s attack, and the reasons therefor will be discussed shortly.)
By reason of this change in the D/R, plaintiff and the other 65 officers were considered for promotion to W-3 on October 1, 1958 (i.e., six years after the revised D/R, but only 3% years after the original D/R). Some were selected and promoted, plaintiff and others were not. In 1959 plaintiff was again considered for promotion and again not selected. As plaintiff would have faced release from active duty because of this second pass-over (by virtue of sec. 13 of the Act, 68 Stat. 162), he resigned his warrant to enlist in the Regular Army in order to complete the necessary time for longevity retirement. He was retired by reason of physical disability on July 8,1964.
[793] The sole issue here is whether the Secretary of the Army had the statutory authority to set plaintiff’s D/B. for his promotion to W-2 when he did, nm., 2% years earlier than the actual date of promotion to W-2. Plaintiff claims that he was denied the full six-year “sanctuary” for W-2s, which the statute explicitly affords, and consequently had not obtained sufficient experience to be able to earn the promotion to W-3. We hold that the Secretary did have such authority.
To reiterate a point we mentioned earlier, under the provisions of the Career Compensation Act of 1949, supra, all warrant officers then on duty, irrespective of their prior service, were given a D/B of October 1, 1949 (the effective date of the Act). Based on this statutorily assigned D/B, plaintiff had accrued approximately five years of prior service by December 15, 1954, at which time the first selection board under the new statutory procedure was convening for the purpose of considering promotions. As it is agreed that plaintiff’s service credit was, at the very least, as great as the three years a warrant officer is allowed to remain in rank W-l, it became mandatory by virtue of sec. 9 (a) of the Act, supra, for his promotion to be considered by the convening board. His promotion to W-2 was approved by this board with a D/B of February 24, 1955. As of that date, plaintiff had approximately 5% years of service duty as a warrant officer. Both plaintiff and defendant agree that the Army Selection Board was correct in considering at least three years out of a possible 5% years of service duty as a credit for purposes of promotion. This point is not in dispute. The question that remains, however, is whether the remaining 21/3 years of prior service duty was also used up at this time
Footnotes
Walters v. United States, 181 Ct. Cl. 790, 1967 U.S. Ct. Cl. LEXIS 151, 1967 WL 8894 (cc 1967).
181 Ct. Cl. 790 (Walters v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
allowing actual service rendered prior to previous promotion to be carried forward and counted toward minimum time in grade requirements for subsequent promotion when statute “explicitly states that service credit can be used to compute the required time in rank.”