PROCEEDINGS

	IN THE CASE OF: 
	 
	BOARD DATE:  27 April 1999
	DOCKET NUMBER:  AR1999022199

	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. John N. Slone		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Curtis L. Greenway		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 Master Sergeant (E-8) instead of Sergeant First Class (E-7).

3.  The applicant states that the highest pay grade he satisfactorily held in the Oregon Army National Guard (OR ARNG) was E-8.  Nonetheless, he was retired in pay grade E-7.  That action resulted in a loss of income.

4.  The applicant was promoted to first sergeant (E-8) in the OR ARNG on 15 May 1984 and held that grade until 19 September 1994 when he was administratively reduced to pay grade E-7 at his own request under the provisions of National Guard Regulation 600-200, paragraph 6-44(f).

5.  Having completed sufficient qualifying service in the OR ARNG for retirement purposes, the applicant was retired effective on 9 September 1998 and placed on the retired list in pay grade E-7, the grade he held on the date of his retirement.  His retirement was in accordance with Title 10 U.S. Code, section 12731.

6.  National Guard Regulation 600-200, paragraph 6-44(f) states, essentially, that a guardsman may take a voluntary reduction in grade to obtain a benefit or for personal reasons.  The promotion authority may then administratively reduce the guardsman without board action.  

7.  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.

8.  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 voluntarily reduced from pay grade E-8 to E-7 and not by reason of misconduct.  

2.  Since the applicant satisfactorily held pay grade E-8 for more than 10 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 E-7 rate will deprive him of monies to which he is entitled.

3.  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 E-7, 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-8, 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 E-7 and E-8, starting from the date of retirement, 9 September 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.