PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           1 March 2001                   
	DOCKET NUMBER:   AR2000045503

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern 		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Richard T. Dunbar		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 correction of his military records to show his retired pay computed in the pay grade of E-9 instead of W-3.   

3.  The applicant states that he served in the Air National Guard with the rank and pay grade of Chief Master Sergeant, E-9, and he should receive retired pay in that grade, which is more than his retired pay as a Chief Warrant Officer, W-3. 
He states that at the time of his retirement he was informed that he was being retired at the highest grade attained, and there was nothing he could do about the pay difference.

4.  The applicant’s military records show that he entered on active duty in the Air Force on 1 April 1951, reenlisted in September 1952, and was discharged on       2 September 1956.  In 1960 he enlisted in the Air National Guard of Oregon.  He was promoted to Chief Master Sergeant, E-9, on 12 September 1977.                  On 10 February 1979 the applicant, then a Chief Master Sergeant, requested a conditional release from the Air National Guard of Oregon in order to accept an appointment in the Army National Guard of Oregon.  The applicant was appointed a Reserve warrant officer of the Army in the rank of Chief Warrant Officer Two and appointed in that rank in the Army National Guard effective       22 February 1979.  He was promoted to Chief Warrant Officer Three on             22 February 1985.  On 3 February 1986 he was discharged from the Army National Guard and transferred to the Army Reserve Control Group (Standby) at St. Louis.  

5.  On 1 February 1991 the applicant was retired and placed on the AUS retired list in the rank of Chief Warrant Officer Three, and authorized retired pay under section 1331, 10 U.S.C.  On 13 February 1991 he was transferred from the Army Reserve Control Group (Reinforcement) to the Retired Reserve.  On 28 February 1991 the Army Reserve Personnel Center at St. Louis notified the applicant that his application for retired pay had been approved.

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

7.  The retired pay of an E-9 is higher than that of an W-3 with the same amount of service.

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.  In providing that he should receive retired pay based on the pay grade most favorable to him, it is not intended that he must forfeit those other rights and privileges vested in or enjoyed by warrant officers.

3.  The determination that the highest grade satisfactorily held by the applicant was unjust in that it has deprived him, and will continue to deprive him, of the increased pay which he would have received if he had been retired in pay     grade E-9.

4.  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 notwithstanding his calculation of retired pay in the grade of W-3, as provided by title 10, United States Code, sections 1331-1337, the retired pay of the individual concerned will be calculated on pay grade E-9, a grade in which he also satisfactorily served, and the formula most favorable to him, as provided by title 10, United States Code, section 1401.

BOARD VOTE:  

___jhk___  ___clg___  __rtd___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045503	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010301	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  306	128.00	
2.	136.00	
3.		
4.		
5.		
6.