PROCEEDINGS

	IN THE CASE OF:         

	BOARD DATE:            10 March 1999 
	DOCKET NUMBER:   AR1999022524

	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. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		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 command sergeant major (E-9) instead of Chief Warrant Officer (CW3).

3.  The applicant states, in effect, that he would receive a higher payment as a command sergeant major E-9, the last enlisted grade he held, than that of a CW3, the highest rank he held.  In support of his application, he submits a copy of his retirement orders.

4.  The applicant’s military records show that he was promoted to the rank of command sergeant major E-9 on 28 March 1983, he was appointed Chief Warrant Officer (CW2) on 3 August 1985 and promoted to CW3 on 3 August 1991.

5.  On 17 November 1998 the Army Reserve Personnel Command notified the applicant that he was being placed on the retired list in the grade of CW3 effective 27 December 1998.   

6.  Title 10, United States Code, provides, in effect, that a person entitled to retire, shall have their 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 CW3 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:

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 CW3, and that he was placed on the Retired list in that pay grade effective
27 December 1998 with his retired pay computed at the pay grade of E-9. 

BOARD VOTE:  

__klw ___  __mw ___  __fkm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Fred K. McCoy______
		        CHAIRPERSON

INDEX

CASE ID	AR1999022524	
SUFFIX		
RECON		
DATE BOARDED	1999/03/10	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19981227	
DISCHARGE AUTHORITY	AR635-200  	
DISCHARGE REASON	RETIRED LIST	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  302	129.000	
2.		
3.		
4.		
5.		
6.