PROCEEDINGS

	IN THE CASE OF:

	BOARD DATE:         22 July 1999
	DOCKET NUMBER:  AR1999026885

	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. 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 correction of his military records to show his retired pay computed on the grade of Chief Warrant Officer Four (CW4) instead of Captain (O-3).

3.  The applicant states that although his highest grade held was O-3, he would receive more pay if his records showed he retired as a CW4, a grade he also satisfactorily held while serving in the Washington Army National Guard (WARNG). Nonetheless, he was retired in pay grade O-3.  That action resulted in a loss of income

4.  The applicant’s Reserve commission as a Captain was vacated on 19 April 1977
upon his reappointment as Chief Warrant Officer Two (CW2) in the WARNG on 
20 April 1977 in accordance with National Guard Regulation 600-101 and was promoted to CW4 on 10 July 1989.

5.  Having completed sufficient qualifying service in the WARNG for retirement purposes, the applicant was retired effective on 1 June 1999 and placed on the retired list in pay grade O-3, the highest grade he held while serving with the WARNG.  His retirement was in accordance with Title 10 U.S. Code, section 12731.

6.  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.

7.  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 satisfactorily held pay grade CW4 for more than 9 years; therefore, 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 O-3 rate will deprive him of monies to which he is entitled.

2.  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.

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 O-3, as provided by Title 10, United States Code, sections 12731-12739, the retired pay of the individual concerned will be calculated on pay grade CW4, 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 O-3 and CW4, starting from the date of retirement, 1 June 1999.

BOARD VOTE:  

  TNK            CMF        RJW      GRANT AS STATED IN RECOMMENDATION

                                                 GRANT FORMAL HEARING

                                                 DENY APPLICATION

						     CALVIN N. FOWLER 
						        CHAIRPERSON

INDEX

CASE ID	AR1999026885r	
SUFFIX		
RECON		
DATE BOARDED	19990722	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  129		
2.		
3.		
4.		
5.		
6.