PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            24 March 1999
	DOCKET NUMBER:   AR1998003605

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

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.	The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his retired pay be calculated on the highest grade he successfully held, effective the date he was advanced to that grade.

3.  The applicant states that although he was advanced from his enlisted grade to his commissioned grade in 1977, he was not paid in that grade until 19 August 1997.  At that time he was given 6 years of back pay but was informed that he would have to petition this Board for the prior 14 years of pay disparity.

4.  The applicant’s military records show that he entered on active duty in the Regular Marine Corp (USMC) in an enlisted status on 9 January 1942.  He was released from active duty in the Regular USMC on 12 April 1946.  He enlisted in the USAR with service on active duty on 4 June 1951 and was commissioned on active duty on 21 July 1951.  He vacated his commission and reverted back to his enlisted status on 28 May 1954 and served continuously on active duty in the Regular Army, being promoted to pay grade E-8, until his retirement for years of service on 1 May 1967.  

5.  The applicant was sent a letter on 18 February 1977 informing him that he had been advanced on the retired list to the rank of first lieutenant effective 16 April 1977 

6.  Army Regulation 635-200 provides for the placement of enlisted soldiers on the retired list.  Paragraph 12-4 of this regulation, in effect at the time, required that the retirement of a soldier be in the pay grade he or she held on the date of retirement.

7.  Title 10, U.S. Code, section 3964, in effect at the time, stated that enlisted members who are retired with less than 30 years of active service will be advanced to the highest grade they successfully held upon attaining 30 years of service based on active service and time spent on the retired list.  Section 1370 states that a commissioned officer’s highest grade will be the grade in which he or she served satisfactorily for not less than 6 months.

CONCLUSIONS:

1.  An obvious error was committed in this case.  The applicant should have automatically received the increased retired pay when he was advanced on the retired list.

2.  While there is a 6-year statute of limitations on filing claims against the Government, it is the opinion of the Board that waiving that limitation would be in the interest of justice.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.
RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

	a.  showing that the individual concerned was entitled to retired pay at the rank of first lieutenant effective 16 April 1977 and;

	b.  paying to him the difference in pay this correction will necessitate, as an exception to policy, from 16 April 1977.

BOARD VOTE:  

_JEV____  _RWA___  _ALR___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_James E. Vick ____
		        CHAIRPERSON

INDEX

CASE ID	AR1998003605	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.