PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 September 1999                   
	DOCKET NUMBER:   AR1999020250

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Meta Waller		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 warrant officer one, W01.

3.  The applicant states, in effect, that retirement in pay grade E-8 is authorized by law so he can receive a higher retired pay.

4.  The applicant’s military records show that he initially entered the active Army on 8 October 1956.  After his release from active duty, he served in the U. S. Army Reserve until 24 November 1958, when he enlisted in the Army National Guard.  He was appointed and served as a warrant officer in the Army National Guard from 11 June 1973 until 2 January 1974, when he reverted back to enlisted status.  He was promoted to E-8 on 30 April 1990 and was placed on the retired list on 6 July 1994 in the grade of WO1.

5.  Title 10, U. S. 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 WO1 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 an individual 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 WO1 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, it would be in the interest of justice to correct the applicant’s records 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 WO1, as provided by title 10, U. S. Code, sections 1331-1337, the retired pay of the applicant 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, U. S. Code, section 1401.

BOARD VOTE:  

__fne___  __tap___  ___mw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999020250	
SUFFIX		
RECON		
DATE BOARDED	19990929	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.