PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  18 August 1999 
	DOCKET NUMBER:   AR1999020045

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Edward L. Williamson		Member	
	Ms. Sherri V. Ward		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 he be retired in pay grade E-8 instead of chief warrant officer 2 (CW2).

3.  The applicant states that this is authorized by law so he can receive a higher retired pay.

4.  The applicant’s military records show that during the time in question he was serving in the USAR and was promoted to grade E-8 effective 1 November 1980. Effective 23 November 1982 he was appointed as a warrant officer in the USAR.

5.  His date of rank for promotion to CW2 is not in the available record but effective 15 September 1991 he was transferred to the Retired Reserve for failure of selection for promotion to CW3.  Effective 13 January 1996 he was placed on the retired list at age 60 and approved to begin retired pay as a CW2.

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.  The retired pay of an E-8 is higher than that of a CW2 with the same amount 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 was CW2 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.

4.  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 showing that, notwithstanding his placement on the retired list in the grade of CW2, 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:  

__RVO  __ELW_  __SVW___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor___
		        CHAIRPERSON

INDEX

CASE ID	AR1999020045	
SUFFIX		
RECON		
DATE BOARDED	19990818	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	129.05	
2.		
3.		
4.		
5.		
6.