PROCEEDINGS

	IN THE CASE OF:           

	BOARD DATE:                22 July 1999
	DOCKET NUMBER:        AR1999025249

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. Raymond J. Wagner		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, correction of his military records to show that his retired pay is computed on the pay grade of master sergeant (MSG) instead 
of 1LT.

3.  The applicant states, in effect, that he would receive a higher payment as
MSG, the last pay grade he held, than that of a 1LT, the highest rank he held.
In support of his application he submits a copy of a letter from the Army Personnel Command Transition and Separations Branch, dated 18 November 1998, copy of Army Reserve Personnel Command, ARPC-PSP-T Orders Number P-11-307079, dated 16 November 1998 (Retirement Orders), copy of Headquarters, 98th Division (Institutional Training) AFRC-TNY-PR Orders Number 105-016, dated 15 April 1997 (Promotion Orders), copy of his Chronological Statement of Retirement Points (DARP-Form 249-2), dated 2 March 1999, and a copy of his Recommendation for Award (DA Form 638), dated 4 January 1999.

4.  He was placed on the Army of the United States Retired List effective
27 March 1998 in the pay grade of 0-2 (1LT), the highest grade satisfactorily
held.  He was serving in the pay grade of 0-2 at the time he applied for
retirement.

5.  On 18 November 1998, the Army Reserve Personnel Center (ARPERCOM) 
notified the applicant that his application for retired pay under Title 10, United States Code, Section 12731, was approved.  ARPERCOM also informed the 
applicant that he was authorized retired pay in the grade of First Lieutenant (02). However, the basic pay rate of a Master Sergeant (E8), is a higher rate pay and would make a difference in his retired pay. 

6.  Title 10, United States Code, provides that a reserve commissioned officer.
under section 12771, shall be placed on the retired list established by section 12774(a) of this title in the highest grade in which served satisfactorily, as determined by the Secretary concerned and in accordance with section 1370(d), in the armed force in which he is serving on the date of transfer.

7.  Section 12731, Title 10, United States Code states age and service requirements for retired pay for non-regular service.  Section 12731(a) states:  “Except as provided in subsection (c), a person is entitled, upon application, to retired pay if the person-
	(1) is at least 60 years of age;
	(2) has performed at least 20 years of service computed under section 12732 of this title;
	(3) performed the eight years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve; and
	(4) is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.”

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 1LT 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-8.

3.  Accordingly, the applicant’s record 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 he highest grade satisfactorily held by the individual concerned,
under the provisions of title 10, United States Code, section 1401, was 1LT,
and that he was placed on the Army of the United States Retired List in such
grade effective 29 November 1998 under the provisions of title 10, United States
Code, sections 12731-12740, with his retired pay computed at the pay grade
of E-8.

BOARD VOTE:  

CMF____  TNK_____  RJW____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Calvin M. Fowler______
		        CHAIRPERSON

INDEX

CASE ID	AR1999025249	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990722	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19981129	
DISCHARGE AUTHORITY	AR /TITLE 10 	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  306		
2.		
3.		
4.		
5.		
6.