PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            12 December 2000
	DOCKET NUMBER:   AR2000043642

	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. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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 receive the most favorable retired pay based on his having satisfactorily served in both the rank and pay grade of Sergeant Major/E-9 (SGM/E-9) and First Lieutenant/0-2 (1LT/0-2). 

3.  The applicant states, in effect, that he requested advancement on the Retired List from SGM/E-9 to Major when his active duty service and time on the Retired List equaled 30 years.  However, instead he was advanced to the rank and pay grade of 1LT/0-2, which caused a reduction in the amount of retired pay he had been receiving as a SGM/E-9.  

4.  The applicant’s military records show that he entered active duty in the Army of the United States (AUS) on 10 February 1943 and served in an enlisted status until 29 September 1948.  On 30 September 1948, he was appointed a Second Lieutenant/0-1 (2LT/0-1) and served on active duty in an officer status until 
15 September 1954.  

5.  On 4 March 1948, he was promoted to the rank and pay grade of 1LT/0-2 and on 25 June 1954, to Captain/0-3 (CPT/0-3), just prior to his REFRAD, from this period of commissioned officer service, on 15 September 1954.  He reentered active duty in an enlisted status on 16 November 1954 and served continuously until being REFRAD on 31 October 1965 for the purpose of retirement.

6.  On 13 October 1965, a Data for Retired Pay Form (AGPZ Form 977), was prepared on the applicant.  This form verified that his retired pay would be based on his pay grade E-9 and that the highest grade he had attained while serving on active duty was CPT/0-3.  This automatically made him eligible for consideration for advancement on the Retired List once his active duty service plus his time on the Retired List totaled 30 years. 

7.  A Department of Defense (DD) Form 214 (Armed Forces of the United States Report of Transfer or Discharge) on file confirms that on 31 October 1965, the applicant REFRAD, under the provisions of Title 10 of the Untied States Code, section 3914 (10 USC 3914), by reason of length of service retirement.  It also verifies that he had completed 22 years, 6 months, and 14 days of active military service and that he was serving as a SGM/E-9 on his separation date.  Further, it confirms that on the following day he was placed on the Retired List in that rank and pay grade. 

8.  A grade determination for retirement, advancement, separation or retirement pay (AGUZ Form 658), dated 7 April 1973, verifies that an evaluation of the applicant’s commissioned officer service was accomplished and that a determination was made that he did not meet the satisfactory active duty service requirements necessary to be eligible for advancement to CPT/0-3 on the Retired List.  However, it was concluded that he was entitled to be advanced to the rank and pay grade of 1LT/0-2 based on his having met the satisfactory service requirements for that pay grade.

9.  A United States Army Administration Center (USAAC) Form Letter 
158 (Advancement on the Retired List), dated 17 April 1973, prepared on the applicant and addressed to the Chief of the Retired Pay Division, Indianapolis, Indiana, indicated that the applicant was eligible for advancement on the Retired List from SGM/E-9 to 1LT/0-2.  A first endorsement prepared by the Chief of the Retired Pay Division indicated that at that time the applicant was receiving retired pay as a SGM/E-9 in the amount of $455.49 and that his retired pay as a 1LT/0-2 would increase to $468.90 upon his advancement to 1LT/0-2 on the Retired List. 

10.  On 21 June 1973, the applicant’s advancement to 1LT/0-2 on the Retired List was authorized by and codified in Letter Order Number 2-006-744, dated 
21 June 1973, published by Department of the Army (DA), Office of the Adjutant General (OTAG), United States Army Reserve Components Personnel and Administration Center (ARPERCEN), St Louis, Missouri.  This order confirmed that the applicant was advanced to the rank and pay grade of 1LT/0-2 on the Retired List, effective 17 April 1973, under the provisions of Title 10 of the United States Code, section 3964.

11.  The applicant provided a letter from the Director of Personnel Actions and Services from the Army Reserve Personnel Command (ARPERSCM) prepared for his Congressman in reply to his request to be advanced to the rank and pay grade of Major/0-4 (MAJ/0-4) on the Retired List.  It is made clear in this letter that the applicant held the rank of MAJ/0-4 in the USAR in a dual status, while serving on active duty in an enlisted status, and that he never served on active duty in that rank and pay grade; thus, the applicant was not eligible to be advanced to that pay grade on the Retired List.  

12.  The ARPERSCOM letter further indicated that the applicant was correct in his statement that he would receive more retired pay as a SGM/E-9 than he was receiving as a 1LT/0-2 and it was not the intent of the Army to deny him the highest retired pay and that if he requested a change in his retired grade it would be acted upon quickly.  

13.  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.  

14.  10 USC 3964 provides the legal authority for the advancement of enlisted members on the Retired List.  It states, in pertinent part, that each retired enlisted 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. 

15.  10 USC 3965 provides the legal authority for restoration to former grade for retired warrant officers and enlisted members.  It states, in pertinent part, that warrant officers and enlisted members of the Army who have been advanced on the Retired List to a higher commissioned grade, and who apply 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 warrant officer or enlisted status, as the case may be. 

16.  10 USC 3991, in addition to providing the standard retired pay formulas for enlisted members retiring for length of service.  In section b, it 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. 

17.  10 USC 1401 (computation of retired pay) provides 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 them.

CONCLUSIONS:

1.  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.  

2.  Neither does the law, in prescribing that a member should receive retired pay based on the pay grade most favorable to them, 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.  

3.  Notwithstanding the computation done at the time of the applicant’s advancement on the Retired List to 1LT/02 on 17 April 1973, which indicated that his retired pay would be increased, it appears he is receiving retired pay based on a formula that is not the most favorable to him.  By law, a member is authorized to receive retired pay under the most favorable pay formula.

4.  Thus, the Board finds that it would be appropriate to allow him to remain on the Retired List in his commissioned officer rank of 1LT and to provide him retired pay based on the formula most favorable to him as a result of his satisfactory service as both a SGM/E-9 and a 1LT/0-2.

5.  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 by showing that the rank of the individual concerned as 1LT on the Retired List; by providing him retired pay based on the pay formula most favorable to him based on his satisfactory service in both pay grades E-9 and 0-2; and by paying him any back pay and allowances due if it is determined he did not receive retired pay based on the most favorable formula provisions of the law. 

BOARD VOTE:  

__hbo___  ___fe ___  __lem___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Fred N. Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR2000043642	
SUFFIX		
RECON		
DATE BOARDED	2000/12/12	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1965/10/31	
DISCHARGE AUTHORITY	10 USC 3914	
DISCHARGE REASON	Retirement 	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  307	139.0500	
2.		
3.		
4.		
5.		
6.