PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  4 November 1998
	DOCKET NUMBER:  AC98-07225

	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 pay grade of staff sergeant (E-6) rather than on the pay of a sergeant (E-5).

3.  The applicant states that he accepted a voluntary administrative reduction in grade in 1994 due to a duty position change.  Although applicant had obtained the rank of staff sergeant (E-6), he was retired as a sergeant because of the administrative reduction.  The retired pay of a staff sergeant is higher than that of a sergeant, therefore the applicant is losing money.

4.  He was placed on the Army of the United States (AUS) Retired List effective 24 October 1995 in the pay grade of E-5, this was not the highest grade satisfactorily held.  He had completed 20 years, 5 months and 12 days of service for pay purposes.  Prior to accepting a voluntary administrative reduction in grade, the highest grade held satisfactorily by the applicant was staff sergeant (E-6) in the Army National Guard.

5.  National Guard Regulation 600-200, paragraph 6-44(f), states in effect, a soldier will take a voluntary reduction in grade to obtain a benefit or for personnel preference.  The promotion authority may then administratively reduce the soldier without board action.  These soldiers are not subsequently entitled to an adjusted DOR for time served in a higher rank if they accept promotion back to their formerly held ranks.

6.  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.

7.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  Paragraph 2-11 of that regulation provides the formula for calculating retired pay based on a percentage of active duty annual basic pay which the individual would receive if serving on active duty, on the effective date of granting retired pay, in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service multiplied by a number equal to the number of years served, and any fraction thereof, on the basis of 360 days per year.

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 applicant for pay purposes was E-5 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-6.

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 pay grade of E-5, 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-6, 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:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

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						        CHAIRPERSON