PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            2 November 2000
	DOCKET NUMBER:   AR2000046554

	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	
	Mr. Ted S. Kanamine		Member	
	Mr. William D. Barr		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 be advanced to the rank of First Lieutenant (1LT) on the Retired List ; however, he asks that he continue to receive retired pay based on the formula most favorable to him, which would be in the pay grade of E-8, based on his satisfactory service as a First Sergeant (1SG), and his earned entitlement to an additional 10 percent for special heroism pay.

3.  The applicant states, in effect, that he would like his personnel records to show him as a 1LT which is the highest rank he attained and in which he satisfactorily served on active duty.  However, he also claims that it would be appropriate for him to continue to receive retired pay at the pay grade of 
E-8, with his earned special pay for heroism, because that is the most favorable pay formula to which he is entitled.

4.  The applicant’s military records show that he entered active duty in the Army of the United States (AUS) on 26 June 1941.  He was appointed a Second Lieutenant (2LT) on 11 January 1943 and was promoted to 1LT on 7 May 1945.  He continued to serve on active duty in a commissioned officer status until 
16 June 1947, at which time he reverted to an enlisted status.  

5.  He reentered the Regular Army in an enlisted status on 24 October 1952 and was promoted to the rank and pay grade of 1SG/E-8 on 2 May 1960.  He continued to serve on active duty in that rank until he was released from active duty (REFRAD), by reason of length of service retirement, on 31 August 1968.  At this time he had completed 27 years and 17 days of active military service and on 1 September 1968, the day following his REFRAD, he was placed on the Retired List in the rank and pay grade of 1SG/E-8.  

6.  A Data for Retired Pay Form (AGPZ Form 977), prepared on the applicant at the time of his retirement, verified that his retired pay would be based on his pay grade E-8.  It also confirmed that the highest rank and pay grade he had attained while serving on active duty was 1LT/0-2.  This automatically made him eligible for advancement to that rank on the Retired List once his active duty service plus his time on the Retired List totaled 30 years.  In addition, this form authorized the applicant an additional 10 percent in retired pay for extraordinary heroism under special pay provisions based on his having earned the Distinguished Service Cross (DSC).

7.  The applicant was advanced on the Retired List to the rank and pay grade of 1LT/0-2, effective 14 August 1971.  This action was authorized by and codified in Letter Order Number 83-525, dated 23 August 1971, 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.
8.  On 19 October 1971, the Chief of the Retired Pay Division, Army Finance Center, Indianapolis, Indiana, advised the applicant that the Comptroller of the United States had held, in effect, that enlisted members drawing an additional 
10 percent of retired pay for heroism lose that entitlement if advanced to a commissioned officer rank on the Retired List.  In addition, the applicant was informed that he could submit a request to the Adjutant General for restoration to his former enlisted grade within three months of the date of his advancement on the Retired List in order to continue to receive the most favorable retired pay available to him.  

9.  On 26 October 1971, the applicant applied for restoration of his enlisted grade on the Retired List based on his desire not to have his retired pay reduced.  This request to have his enlisted grade restored on the Retired List was approved and on 2 February 1972, Letter Order Number 2-004-586 was published by the DA, OTAG, ARPERCEN.  This order revoked the applicant’s advancement to the rank and pay grade of 1LT/0-2 on the Retired List and restored his retired rank and pay grade to 1SG/E-8.

10.  On 12 January 1997, General Order Number 2 was issued by The Secretary of the Army, Headquarters DA, Washington D.C.  This document, in effect, codified that the applicant had been awarded the Medal of Honor in lieu of the DSC he had earned during World War II. 

11.  Title 10 of the Untied States Code, section 3914 (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, in addition to providing the standard retired pay formulas for enlisted members retiring for length of service, also authorizes an additional 
10 percent of retired pay for certain enlisted members who have been credited with extraordinary heroism in the line of duty by the Secretary of the Army.  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. 

13.  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. 

14.  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. 

15.  Paragraph 10163 of the Department of Defense Retired Pay Manual (DODRPM) provides guidance on providing special heroism pay for those members advanced on the Retired List.  It states, in pertinent part, that retired enlisted members of the Regular Army receiving the 10 percent additional increase in pay for extraordinary heroism are not entitled to the 10 percent increase when advanced to a higher grade on the completion of 30 years of service.  

16.  Chapter 5 of the DODRPM covers pay procedures pertaining to the advancement of retired members on the Retired List.  Paragraph 20504 contains guidance in regard to the effects of these advancement actions on retired pay.  It 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.  It also indicates that an enlisted member who when retired was awarded a 10 percent increase in retired pay, because of extraordinary heroism performed in the line of duty, is not eligible to continue receiving the additional 10 percent upon advancement to an officer rank on the Retired List.

17.  Paragraph 20505 of the DODRPM provides the policy for the restoration of grade of enlisted members of the Regular Army, as authorized in 10 USC 3965, once they have been advanced on the Retired List, under the provisions of 
10 USC 3964.  It states, in pertinent part, that a member who had been advanced on the Retired List to a higher commissioned officer 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.  
18.  Title 10 of the United States Code, section 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.  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.  

3.  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 1LT.  

4.  Further, the Board concludes that denying the applicant retired pay based on the formula most favorable to him based on his satisfactory service as a 
1SG/E-8, and his earned entitlement to heroism pay, based on his extraordinary exploits and deeds of heroism, would also clearly violate 10 USC 3991 which establishes the most favorable pay formula provisions of the law.  

5.  Therefore, the Board concludes that it would be appropriate at this time to advance the applicant to the rank of 1LT on the Retired List and to provide him retired pay as a MSG/E-8, with special heroism pay, as an exception to the recomputation policy for members advanced on the Retired List and the rules regarding the restoration of a former enlisted grade for members advanced on the Retired List to commissioned officer grades. 

6.  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 individual concerned was advanced on the Retired List in the rank of 1LT; effective 14 August 1971 and by providing him retired pay based on the pay formula most favorable to him as a result of his satisfactory service in pay grade E-8, with an additional 10 percent of special heroism pay. 

BOARD VOTE:  

__tsk ___  ___wdb__  ___fe ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Fred Eichorn    _____
		        CHAIRPERSON

INDEX

CASE ID	AR2000046554	
SUFFIX		
RECON		
DATE BOARDED	2000/11/02	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1968/08/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.