PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  24 June 1999
	DOCKET NUMBER:  AR1999021553

	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. Gary C. Miller		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Raymond V. O’Connor		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 Sergeant Major (E-9) instead of Chief Warrant Officer Two (CW2).

3.  The applicant states that the highest enlisted pay grade he satisfactorily held in the Indiana Army National Guard (IN ARNG) was E-9.  Nonetheless, he was retired in pay grade CW2.  This action resulted in a loss of income.

4.  The applicant was promoted to Sergeant Major (E-9) in the IN ARNG on 
4 October 1972 and held that grade until 4 June 1981. 

5.  On 5 June 1981 the applicant was discharged from the IN ARNG in the grade of Sergeant Major (E-9) and accepted an appointment in the grade of CW2 under the provisions of National Guard Regulation 600-100, paragraph 1-6.

6.  In 1986 the applicant’s records were placed before a Selection Retention Board and it was determined not to retain him in the grade of CW2.

7.  On 13 March 1986 the applicant was allowed to resign as a warrant officer and enlist in the IN ARNG in the grade of Sergeant First Class (E-7) as there were no E-9 positions available in the applicant’s Military Occupation Specialty (MOS).

8.  On 17 November 1993 the applicant was promoted to the rank of Master Sergeant (E-8) and held that grade until his retirement.

9.  Having completed sufficient qualifying service in the IN ARNG for retirement purposes, the applicant was retired effective on 1 November 1998 and placed on the AUS Retired list in pay grade CW2, the highest grade he held during his service in the IN ARNG.  His retirement was in accordance with Title 10 U.S. Code, section 12731.

10.  Title 10 U.S. Code, section 12731, states, in pertinent part, that a person is entitled, upon application, to retired pay computed under section 12739 of this title if the person is at least 60 years of age, has performed at least 20 years of service computed under section 12732 of this title and performed the last eight years of qualifying service while a member of a Reserve component.

11.  Title 10 U.S. Code, section 1406(b)2 states, in the case of a person who is entitled to retired pay under section 12731, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the armed forces.

CONCLUSIONS:  

1.  The evidence of record indicates that the applicant was reduced from pay grade CW2 to E-7 due to a Selection Retention Board action and not by reason of misconduct.  

2.  Since the applicant satisfactorily held pay grade E-9 for almost 9 years, his retired pay should be based on that higher grade, in accordance with Title 10 U.S. Code, section 1406(b)2.  To allow his retired pay to remain at the CW2 rate will deprive him of monies to which he is entitled.

3.  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.

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:

     a.  by showing that, notwithstanding his placement on the AUS Retired list in the pay grade of CW2, as provided by Title 10, United States Code, sections 12731-12739, the retired pay of the individual concerned will be calculated on pay grade E-9, a grade in which he also satisfactorily held as provided by Title 10, United States Code, section 1406(b)2 and;

     b.  by paying him back pay for the difference between pay grades CW2 and 
E-9, starting from the date of retirement, 1 November 1998.

BOARD VOTE:  

                                                 GRANT AS STATED IN RECOMMENDATION

                                                 GRANT FORMAL HEARING

                                                 DENY APPLICATION

						                                               
						        CHAIRPERSON

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.