PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            21 December 2000
	DOCKET NUMBER:   AR2000044779

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Gail J. Wire		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 that he be advanced on the Retired List to the pay grade of O-3E.

3.  The applicant states, in effect, that he should be advanced on the Retired List in the pay grade of O-3E and paid retroactively in that pay grade when he became eligible in January 2000.  He further states that he was placed on the Retired List in the pay grade of O-3 but has never been paid at that rate because the documents were never forwarded to finance due to a misinterpretation of officials at the Army Reserve Personnel Command (ARPERSCOM).  In support of his application he submits documents from the ARPERSCOM advising him to apply to the Board. 

4.  The applicant’s military records show that he initially enlisted on 15 March 1966 and served in a enlisted status until he was honorably discharged on 10 April 1967 to accept an appointment as a Reserve warrant officer one (WO1) aviator with a concurrent call to active duty.

5.  On 21 April 1970 he was discharged to accept a commission as a Reserve commissioned officer in the rank of captain, with a concurrent call to active duty on 22 April 1970.  He continued to serve as a commissioned officer until he was honorably released from active duty on 31 January 1972 due to a reduction in force and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

6.  On 17 November 1975 he accepted an appointment as a USAR WO1 and entered active duty on 1 January 1976.  He remained on active duty and was promoted to the pay grade of CW4/W-4 on 1 August 1987. 

7.  He submitted an application for voluntary retirement on 23 August 1989 whereas he requested retirement by reason of length of service effective 1 July 1990.  He indicated at that time that the highest grade he held on active duty was that of a captain (0-3).  His application was approved and he was released from active duty on 30 June 1990 and was transferred to the Retired List in the pay grade of W-4 effective 1 July 1990.  He had served 20 years, 5 months and 26 days of total active service, of which 1 year and 26 days was spent in an enlisted status.

8.  On 24 September 1996 officials at the ARPERSCOM notified the applicant, in response to a request from him to be advanced on the Retired List, that he would not be eligible to be advanced until he had 30 years of active and retired service (5 January 2000).  He was advised to reapply at that time.

9.  On 6 June 2000 officials at the ARPERSCOM notified the applicant that advancement on the Retired List to the pay grade of O- 3 would result in a loss of retired pay because the pay rate for a captain was less than that of a W-4.  The applicant responded to that letter and informed officials that such was not the case.  Officials at the ARPERSCOM acknowledged that he was correct and advised him to apply to the Board.  The officials also apologized for the error.

10.  Title 10, United States Code, Section 3964 provides, in pertinent part, that enlisted and warrant officer personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

11.  The Department of Defense Military Pay and Entitlements Manual (also known as the DOD Pay Manual) provides in pertinent part, that officers/warrant officers who serve over 3 years of active service in an enlisted status will be paid at the rate of pay prescribed for the appropriate pay grade using the pay scale of officers with over 3 years of service.  Personnel who serve exactly 3 years of enlisted service are not authorized to be paid at the over-3 rate.

CONCLUSIONS:

1.  In order to be paid at the over 3 years rate in the rank of captain, the applicant would have to have served over 3 years of active enlisted service and such was not the case. 

2.  However, he did serve on active duty in the pay grade of O-3 and he is entitled to be advanced on the Retired List in that pay grade on his 30-year eligibility date with entitlement to back pay and allowances from that date.

3.  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 advanced on the Retired List on his 30-year eligibility date to the pay grade of O-3 with entitlement to all back pay and allowances from that date in the pay rate that is most advantageous to him.

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

BOARD VOTE:  

___ewl __  __kak___  __gw____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Karol A. Kennedy____
		        CHAIRPERSON

INDEX

CASE ID	AR2000044779	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/12/21	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/adv on retired list	
2.		
3.		
4.		
5.		
6.