PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            23 December 1998 
	DOCKET NUMBER:   AC98-12373
                                              AR1998013400

	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. Jessie B. Strickland.		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Karol A. Kennedy		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 requests, in effect, that his records be corrected to show that his retired pay is computed based on the retired pay of sergeant major (E-9) instead of 1LT (O-2). 

3.  The applicant states, in effect, that he would receive a higher payment as a sergeant major (SGM) E-9, the last enlisted grade he held, than that of a 1LT, the highest rank he held.  In support of his application he submits a copy of his Chronological Statement of Retirement Points as a SGM.

4.  The applicant’s military records show that he was promoted to the rank of SGM E-9 on 20 December 1986.

5.  On 14 April 1997 the Army Reserve Personnel Center (ARPERCEN) notified the applicant that his application for Retired pay had been approved and that he was authorized Retired pay in the pay grade of 1Lt (02).  The ARPERCEN also advised him that the basic rate of Retired pay for SGM E-9 would result in a higher rate of pay and that he could apply to the Board to have his retired pay grade changed if he considered it an injustice.
 
6.  Title 10, United States Code, provides, in effect, that a person entitled to retire, shall have their retired pay computed on the monthly basic pay of the highest grade satisfactorily held at anytime.  However, 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.

CONCLUSIONS:

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

2.  The determination that the highest grade satisfactorily held by the applicant was 1LT is correct; however, it is unjust in that it has deprived him, and will continue to deprive him, of the increased pay which he would have received if his retired pay had been computed in the pay grade of E-9.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected to show that the highest grade satisfactorily held by the individual concerned was 1LT, and that he was placed on the Retired list in that pay grade effective 10 August 1997 with his retired pay computed at the pay grade of E-9. 

BOARD VOTE:  

___kak __  __le ____  ___ro ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr_
		        CHAIRPERSON

INDEX

CASE ID	AC98-12373/AR1998013400	
SUFFIX		
RECON	 	
DATE BOARDED	1998/12/23	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  128.00		
2.		
3.		
4.		
5.		
6.