PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            7 November 2000
	DOCKET NUMBER:   AR2000040252

	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. George D. Paxson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Paula Mokulis		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, advancement to the rank and pay grade of Warrant Officer One/W-1 (WO1/W-1) on the Retired List. 

3.  The applicant states, in effect, that he held and satisfactorily served as a 
WO1 in the United States Navy (USN), which should entitle him to be advanced to that rank and pay grade on the Retired List.  Finally, he asks that his pay and separation documents be corrected to reflect this advancement action. 

4.  The applicant’s military records show that he entered the USN on 11 July 1938.  He attained the pay grade of W-1 on 7 March 1945 and served in that capacity until he was separated from the USN on 9 January 1946.  

5.  On 10 January 1947, he entered the Regular Army and continuously served on active duty until he was released from active duty (REFRAD), by reason of length of service retirement, on 31 August 1959.  On 1 September 1959, he was placed on the Retired List in the rank and pay grade of Sergeant First Class/E-6 (SFC/E-6), the rank he held on the date of his REFRAD. 

6.  On 10 June 1966, the applicant was ordered to active duty from the Retired List, in the rank and pay grade of SFC/E-7, and he served on active duty in that status until reverting back to retired status on 9 July 1968.  At the time of his separation from this additional period of active duty, his retired pay was recomputed to add his active duty service and based on his having attained the rank and pay grade of SFC/E-7.

7.  The evidence or record includes a Department of Defense (DD) Form 214 (Armed Forces of the Unites States Report of Transfer or Discharge) issued to the applicant on 9 July 1968, upon his separation from his last period of active duty.  This document verifies that upon his separation from this additional period of active duty he was transferred back to the Retired Reserves, in the rank and pay grade of SFC/E-7, and that he had completed a total of 22 years, 2 months, and 13 days of active military service.  

8.  On 12 November 1973, a Determination of Grade for Retirement, Advancement, Separation of Retirement Pay Form (AGUZ Form 658) was completed on the applicant.  A grade determination decision was rendered that authorized, under the provisions of Title 10 of the Unites States Code, section 3964 (10 USC 3964), the applicant’s advancement to the rank and pay grade of W01/W-1 on the Retired List, based on his satisfactory service in that rank and pay grade. 

9.  On 19 November 1973, Letter Order (LO) Number (#) O2-008-498 was issued by the Department of the Army (DA) Office of the Adjutant General (OAG), United States Army Reserve Components Personnel and Administration Center (ARPERSCERN), St. Louis, Missouri.  This order authorized the applicant’s advancement from the rank and pay grade of SFC/E-7 to the rank and pay grade of W01/W-1 on Retired List, effective 12 July 1969.  

10.  On 16 April 1974, DA, OAG, ARPERSCEN, issued LO # 92-523, which revoked the applicant’s advancement to WOI/W-1 on the Retired List and restored him to enlisted rank and pay grade of SFC/E-7.  The authority cited in this order was 10 USC 3965 which provides the legal authority for the restoration to former grade of retired warrant officers and enlisted members of the Army.

11.  10 USC 3914 provides the legal authority for the length of service retirement of enlisted personnel who have completed between 20 and 30 years of active military service.  Retired pay computation formulas for enlisted members retiring under this provision of the law are contained in 10 USC 3991.  

12.  10 USC 3991, provides the standard retired pay computation formulas applicable to enlisted members retiring for length of service.  Section B further provides a general rule that mandates the use of the most favorable pay formula. This rule states, in pertinent part, that if a person would otherwise be entitled to retired pay computed under more than one formula he is entitled to be paid under the applicable formula that is most favorable to him.  The most favorable pay formula rule of law is further defined in 10 USC 1401. 

13.  10 USC 3964 provides the legal authority for the advancement of enlisted members and warrant officers on the Retired List.  It states, in pertinent part, that each enlisted and warrant officer retired member of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Army. 

14.  10 USC 3965 provides the legal authority for the restoration of a prior enlisted grade on the Retired List.  It states, pertinent part, that each retired enlisted member of the Army who has been advanced on the retired list to a higher grade under 10 USC 3964, and who applies to the Secretary of the Army within three months after his advancement, shall, if the Secretary approves, be restored on the retired list to his former enlisted status.

15.  The Department of Defense Retired Pay Manual (DODRPM) provides guidance regarding military retired pay as authorized by Public Law, United States Statutes, Comptroller General Decisions, and other governing directives.  The effects of pay policy in regard to advancement of retired members on the Retired List is contained in chapter 5.  Paragraph 20504 states, in pertinent part, that if an enlisted member is advanced on the Retired List his retirement pay must be recomputed, even though a reduction of retired pay would result.  It allows that prior to being advanced a member should be consulted and advised that the retired pay entitlement would be less if they elected to be advanced.

16.  Paragraph 20505 of the DODRPM provides provisions for the restoration of grade of enlisted members of the Regular Army who had been advanced on the Retired List.  It states, in pertinent part, that a member who had been advanced on the Retired List to a higher grade may apply for restoration to their former enlisted grade within 3 months of the advancement action.  It also states that once a member is restored they are thereafter considered for all purposes to be an enlisted member.  

17.  Title 10 of the United States Code, section 1401 (computation of retired pay) provides the computation formulas for retired pay.  Public Law 99-348 amended this section of the law to add Section b (Use of Most Favorable Formula) which states, in pertinent part, that if a person would otherwise be entitled to retired pay computed under more than one formula or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him. 

CONCLUSIONS:

1.  After carefully reviewing the evidence or record and the independent evidence provided by the applicant, the Board concludes that partial relief is warranted in this case.  

2.  The specific facts and circumstances pertaining to the applicant’s November 1973 advancement to WO1/W-1 on the Retired List, under the provisions of 
10 USC 3964, and his subsequent April 1974 restoration to enlisted status, under the provisions of 10 USC 3965, are not contained in the evidence or record.  

3.  However, it appears that the applicant voluntarily requested restoration to his enlisted rank on the Retired List under the provisions of 10 USC 3965.  This was likely the result of his being advised that a recomputation of his retired pay, based on his advancement to WO1/W-1 on the Retired List, resulted in his receiving less retired pay than he would if he continued to receive retired pay in his enlisted status as an SFC/E-7.  

4.  In providing that an individual be retired in the highest grade satisfactorily held the law, as outlined in the most favorable pay provisions of 10 USC 3991, clearly intended to provide for the highest amount of retired pay.  

5.  The law in prescribing that a member should receive retired pay based on the pay grade most favorable to them, does not intend that these members 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.  

6.  Notwithstanding the recomputation and restoration rules codified in 
10 USC 3964 and 3965, as outlined in paragraphs 20504 and 20505 of the DODRPM, the Board finds it would be unjust to deprive the applicant of the earned recognition, rights, and privileges due him based on his satisfactory service as a WO1.  

7.  Therefore, in the interest of equity and justice, the Board concludes that it would be proper to advance the applicant to the rank of WO1 on the Retired List.  In addition, based on his satisfactory service as both a W01/W-1 and as an 
SFC/E-7, the Board finds it appropriate to provide him retired pay based on whichever of these two formulas that is most favorable to him.

8.  The Board notes the applicant’s request that his separation document be corrected to show his rank and pay grade was WO1/W-1.  However, the applicable regulation requires that the rank and pay grade a member actually holds on the date of his REFRAD be entered on the separation document, which in the applicant’s case was clearly SFC/E-7.  Thus, the Board finds that the rank and pay grade entered on the applicant’s DD Form 214 is correct and relief is not warranted on this particular issue.  

9.  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 Retired List in the rank of WO1; and by providing him retired pay based on the pay formula most favorable to him as a result of his satisfactory service in both pay grade W-1 and pay grade E-7.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___mm__  __gp____  ___pm __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____George D. Paxson_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000040252	
SUFFIX		
RECON		
DATE BOARDED	2000/11/07	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1968/07/09	
DISCHARGE AUTHORITY	AR 635-200 C12/10 USC 3914	
DISCHARGE REASON	Length of Service Retirement	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.  		
3.		
4.		
5.		
6.