PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            27 June 2000
	DOCKET NUMBER:   AR2000036450

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		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, in effect, that he be advanced to the rank and pay grade of Captain/0-3 (CPT/O-3) on the retired list.

3.  The applicant states, in effect, that he was commissioned a 2nd lieutenant from Officer Candidate School (OCS) in November 1965, attained the rank of CPT/0-3 on 25 March 1968, and served in that rank until 3 February 1977.  He was appointed a Warrant Officer 1 (WO1/W-1) in February 1977 and retired from active service as a Chief Warrant Officer 3 (CW3/W-3) on 8 August 1993.  At the time of his retirement he was told that he was not eligible for the highest grade he held.

4.  The applicant’s military records contain a Department of Defense (DD) 
Form 214 (Report of Separation From Active Duty) issued to him on 3 February 1977.  This document verifies that he served on active duty as a commissioned officer for 11 years, from 25 January 1966 to 3 February 1977, at which time he was honorably discharged from active duty in the rank and pay grade of CPT/0-3. 

5.  On 4 February 1977, the applicant immediately reentered active duty upon his appointment as an aviation WO1/W-1.  He served as an aviation Warrant Officer for almost 10 years and attained the rank of CW3/W-3 on 3 August 1981.

6.  On 26 September 1986, a Physical Evaluation Board (PEB) convened to evaluate the applicant’s fitness duty based on an existing medical condition.  The PEB found the applicant medically unfit for further service and recommended that he be granted a disability rating of 10 percent.  They further recommended that he be permanently retired from the service if otherwise qualified.

7.  On 4 December 1986, the Army Personnel Command (PERSCOM), based on the findings and recommendations of the PEB, issued a message directing the applicant’s disability retirement on 8 January 1987 and his placement on the disability retired list, in the rank of CW3/W-3, on 9 January 1987.

8.  The record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 8 January 1987.  This document verifies that he was retired from the Regular Army, in the rank and pay grade of 
CW3/W-3, after completing a total of 23 years and 5 months of active military service.  The authority for the applicant’s retirement was Army Regulation 
635-40, and the narrative reason for his separation was physical disability- permanent.

9.  Title 10 of the United States Code, section 1201 (10 USC 1201) provides the legal authority for the retirement of a member for physical disability.  It states that a member may be retired under this provision of law, upon a determination by the Secretary concerned, that they are unfit to perform the duties of their office, grade, rank, or rating because of physical disability incurred while entitled to basic pay.  Section 1401 (10 USC 1401) provides guidance on the computation of retired pay.  It states, in pertinent part, that a Warrant Officer retiring for physical disability is entitled to the use of the most favorable formula for retired pay.  That is, if a member otherwise would be entitled to have their retired pay computed under more than one formula or provision of law, the person is entitled to be paid under the applicable formula that is most favorable to them.

10.  Title 10 of the United States Code, section 1372 (10 USC 1372) provides the legal authority for the grade to which a member is entitled to be placed on the retired list upon retirement for physical disability.  It states, in pertinent part, that a member should be retired in the grade or rank in which they are serving on the date of their retirement, or the highest temporary grade or rank in which they served satisfactorily, as determined by the Secretary of the armed force from which they are retired. 

11.  On 7 June 2000, the Army Grade Determination Board, in responding to the applicant’s request for advancement on the retired list, determined that they did not have jurisdiction in the case.  They found that because the applicant had retired due to physical disability, he was therefore eligible for a grade determination at the time of his retirement and if his commissioned service was determined to be satisfactory he should have been retired in the rank and pay grade of CPT/O-3.  

CONCLUSIONS:

1.  The Board concurs with the finding of the Army Grade Determination Board, which concluded that the applicant was entitled to a grade determination at the time of his retirement.  Further, the evidence of record shows that his active duty service in the rank and pay grade of CPT/0-3 was satisfactory.  Therefore, the Board concludes that he should have been placed on the retired list in the highest rank in which he satisfactorily served, which in this case is CPT/0-3.

2.  The Board also finds, under the provisions of 10 USC 1401, that the applicant was entitled to have his retired pay computed under the formula most favorable to him at the time of his retirement.  This should have resulted in his retired pay being computed at both the CW3-W-3 and CPT/0-3 rates and in his receiving retired pay based on the pay rate most favorable to him at the time of his retirement.  

3.  Given the provisions of the law outlined in the preceding two paragraphs, the Board concludes that the applicant’s rank on the retired list should be CPT based on his satisfactory active duty service in that grade.  In addition, he is entitled to receive retired pay in either the rank and pay grade of CW3/W-3 or CPT/0-3, based on whichever pay rate is most favorable to him.

4.  The Board also concludes that it would be appropriate to provide the applicant any back pay and allowances due, from the date of his retirement, if he is entitled higher retired pay as a result of computing his retired pay using the formula most favorable to him, as provided by law (10 USC 1401).

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by changing the rank of the individual concerned on the retired list to CPT.

2.  That the retired pay of the individual concerned be computed in the rank and pay grades of CW3/W-3 and CPT/0-3, and that he be provided the retired pay rate based on the most favorable formula to him.  

3.  That if the most favorable pay formula computation results in an increase in the retired pay of the individual concerned, he be provided all back pay and allowances due since the date of his retirement.  

BOARD VOTE:  

__wtm___  ___mdm_  __clg ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Mark D. Manning____
		        CHAIRPERSON

INDEX

CASE ID	AR2000036450	
SUFFIX		
RECON		
DATE BOARDED	2000/06/27	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1987/01/08	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Physical Disability	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.