PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  25 March 1999
	DOCKET NUMBER:   AR1998007849

	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	
	Ms. Lee Tinsley		Analyst	

  The following members, a quorum, were present:

Ms.	Margaret K. Patterson		Chairperson	
Mr. 	Elzey J. Arledge, Jr.		Member	
Mr. 	Lester Echols		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 is the widow of the former service member (FSM).  The applicant requests correction of the FSM’s military records to show his retired pay computed on the grade of command sergeant major E-9 instead of chief warrant officer two (WO2).

3.  The applicant states that although the FSM’s highest grade held was WO2, he would have received more pay if his records showed he retired as an E-9, a grade he also satisfactorily held.

4.  The FSM was placed on the USAR Control Group (Ret Res) list effective 
1 May 1990 in pay grade WO2, his highest grade satisfactorily held.

5.  Title 10, United States Code, provides that a person entitled to retire, under section 1331 of that title, shall have the retired pay computed on the monthly basic pay of the highest grade satisfactorily held at any time.  However, under section 1401 of the same statute, if entitled to retired pay computed under more than one pay formula or under any other provision of law, the FSM is entitled to be paid under the applicable formula that is most favorable to the FSM.

CONCLUSIONS:

1.  In providing that an individual be retired in the highest grade satisfactorily held, Congress clearly intended to provide for the highest amount of retired pay.

2.  The determination that the highest grade satisfactorily held by the FSM is unjust in that it has deprived him, and will continue to deprive his widow, of the increased pay which he would have received if he had been retired in pay grade E-9.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that notwithstanding the FSM’s placement on the USAR Control Group (Ret Res) list in the grade of WO2, as provided by title 10, United States Code, sections 1331-1337, the retired pay of the individual concerned will be calculated on pay grade E-9, a grade in which he also satisfactorily served, and the formula most favorable, as provided by title 10, United States Code, section 1401.

BOARD VOTE:  

 MKP         EJA           LE     GRANT AS STATED IN RECOMMENDATION

                                             GRANT FORMAL HEARING

                                             DENY APPLICATION

						 Margaret K. Patterson        
						        CHAIRPERSON

INDEX

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