PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            26 September 2000
	DOCKET NUMBER:   AR2000039197

	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. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baker		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, in effect, requests reconsideration that his rank on the Retired List be changed from Sergeant First Class (SFC) to Second Lieutenant (2LT) in order for him to have this rank codified on his Military Identification Card (ID).

3.  The applicant states, in effect, that he satisfactorily held and served in the rank of 2LT while on active duty during World War II and that he was initially placed on the Retired List in that rank on 16 December 1978.  However, in 1980 he requested of and was granted by this Board a change in his retired rank to SFC because this provided him a more favorable retired pay formula.  He now wishes to be able to have 2LT, the highest rank he held and in which he satisfactorily served, codified on his ID card.  

4.  The applicant’s military records show that he entered active duty in the Army of the United States (AUS) on 16 September 1940.  He was appointed a 2LT on 
20 March 1945 and successfully served on active duty in that rank until 
25 October 1945, at which time he was honorably discharged.  

5.  He had a break in service until 24 June 1957, at which time he enlisted in the Army National Guard (ARNG) in the rank of SFC.  He continuously served in the ARNG until 16 December 1978 when he retired after completing 26 years, 7 months and 16 days of creditable service.  He was placed on the AUS Retired List as a 2LT based on this having been the highest grade he held and in which he satisfactorily served.  

6.  On 28 February 1979, the Director of Retired Activities, Army Reserve Personnel Command (ARPERSCOM), advised the applicant that he would receive a more favorable retired pay benefit if he received retired pay as a SFC as opposed to a 2LT.  He also informed the applicant that he could apply to this Board to request that he be placed in a retired pay status as an SFC in order for him to receive the greater amount of retired pay.  

7.  On 6 March 1979, the applicant applied to this Board and requested that his retirement grade be changed from 2LT to SFC.  On 2 July 1980, a panel of this Board recommended that, in effect, the applicant’s record be corrected to show he was placed on the Retired List in the rank of SFC, effective 16 December 1978.

8.  On 20 August 1980, Order 2-815 was published by ARPERSCOM.  This document indicated that the applicant’s placement on the Retired List was being amended to read “Retired Grade:  Sergeant First Class.”  Title 10 of the United States Code section 1331 was cited as the authority for this action.  

9.  Title 10, United States Code, provides that any person entitled to retire, under section 1331 of that title, shall have their retired pay computed on the monthly basic pay of the highest grade satisfactorily held at any time.  However, under section 1401 of the same statute, if entitled to retired pay computed under more than one pay formula or under any other provision of law, they are entitled to be paid under the applicable formula that is most favorable to them.

10.  Title 10 of the United States Code, section 1401, provides the legal authority for the computation of retired pay.  It states, in pertinent part, that if a member would otherwise be entitled to retired pay computed under more than one formula outlined in this provision of the law or any other provision of law, the person 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 for the highest amount of retired pay.

2.  The law, in providing that a member should receive retired pay based on the pay grade most favorable to them, does not intend that they must forfeit those other rights and privileges vested in or enjoyed as a result of their having satisfactorily served in a commissioned or warrant officer status.  

3.  Therefore, the Board concludes that the earlier determination the applicant be placed on the Retired List as an SFC based on this being the highest grade he satisfactorily held was unjust and served to deprive him of the earned recognition, rights, and privileges due him based on his satisfactory commissioned service as a 2LT. 

4.  The Board also determined that it would be equally unjust to deprive the applicant of the increased retired pay he earned as a result of his satisfactory enlisted service as an SFC.  Thus, the Board finds that it is appropriate to continue to provide the applicant retired pay as an SFC, if that is in fact the most favorable retired pay formula for which he is qualified.  

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 showing that the individual concerned was placed on the AUS Retired List as a 2LT, effective 16 December 1978, as provided for by Title 10, United States Code, sections 1331-1337.

2.  Notwithstanding the placement of the individual concerned on the AUS retired list as a 2LT, his retired pay will be calculated based on the pay grade of E-7, a grade in which he also satisfactorily served, if that is the retired pay formula most favorable to him, as provided by Title 10, United States Code, section 1401.

BOARD VOTE:  

___tb ___  ___mm__  __ao____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Arthur A Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2000039197	
SUFFIX		
RECON		
DATE BOARDED	2000/09/26	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1978/12/16	
DISCHARGE AUTHORITY	10 USC 1331-1337	
DISCHARGE REASON	Retirement	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.