PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  4 November 1998
	DOCKET NUMBER:  AC98-07223

	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:

	Mr. James E. Vick		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Thomas N. Kuhn		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 correction of his military records to show his retired pay computed on the grade of master sergeant E-8 instead of chief warrant officer one (WO1).

3.  The applicant states that although his highest grade held was WO1, he would receive more pay if his records showed his retired pay computed as an E-8, a grade he also satisfactorily held.

4.  He was placed on the Army of the United States Retired List (AUS) effective 
24 May 1987 in pay grade WO1, 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 his 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, he is entitled to be paid under the applicable formula that is most favorable to him.

6.  In similar cases, the Army Reserve Personnel Command recommended that, despite governing statutes or regulations, soldiers’ retired pay should be calculated on the highest grade that is most beneficial monetarily to the soldier.  A soldier serving in pay grade E-8 with over 33 years of service receives more pay that an officer serving as a WO1 with the same number of years of service.

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.  In providing that he should receive retired pay based on the pay grade most favorable to him, it is not intended that he must forfeit those other rights and privileges vested in or enjoyed by commissioned or warrant officers.

3.  The determination that the highest grade satisfactorily held by the applicant is unjust in that it has deprived him, and will continue to deprive him, of the increased pay which he would have received if he had been retired in pay grade E-8.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that notwithstanding his placement on the AUS retired list in the grade of WO1, 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-8, a grade in which he also satisfactorily served, and the formula most favorable to him, as provided by title 10, United States Code, section 1401.

BOARD VOTE:  

JEV  LLS  TNK  GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

						__James E. Vick____
						        CHAIRPERSON