PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           29 March 2001
	DOCKET NUMBER:   AR2001051172

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Christopher J. Prosser		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 that his retired pay is computed based on the pay grade of master sergeant (MSG), pay grade E-8 instead of chief warrant officer two (CW2), pay grade W-2.

3.  The applicant states, in effect, that he would receive a higher payment as a MSG than that of a CW2, the highest rank he held.  

4.  The applicant’s military records show that while serving in the rank of MSG, with a date of rank of 3 July 1977, in the South Carolina Army National Guard (SCARNG), the applicant was appointed as a CW2, on 16 August 1979.

5.  On 27 May 1981, he was issued his letter of notification of eligibility for retired pay at age 60 as a CW2.

6.  On 1 December 1981, he was transferred to the Retired Reserve.

7. 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 the 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.

CONCLUSIONS:

1.  In providing that an individual be retired in the highest grade satisfactorily held, congress clearly intended to provide individuals the highest amount of retired pay.

2.  The determination that the highest grade satisfactorily held by the applicant was CW2 is unjust in that it has deprived him, and will continue to deprive him, of the increased pay which he would have received if his retired pay had been computed in the pay grade of E-8.

3.  Accordingly, 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 placement on the AUS retired list in the grade of W-2, 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-8, 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:  

_cjp___  _le______  _jns_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		          John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001051172	
SUFFIX		
RECON		
DATE BOARDED	20010329	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	136	
2.		
3.		
4.		
5.		
6.