PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 March 2001
	DOCKET NUMBER:   AR2001051305

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. John T. Meixell		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 be computed in pay grade W-4 instead of captain (0-3).

3.  The applicant states that the highest pay grade he held at retirement was W-4 and he is entitled to the highest retired pay.

4.  He was placed on the Army of the United States Retired List (AUS) effective   21 December 2000 in pay grade 0-3, his highest grade satisfactorily held.  The applicant had 21 years of qualifying service and 38 years, 6 months, and 4 days of service for pay purposes.  

5.  The maximum point value for retired pay for pay grade O-3 is .298 and .319 for pay grade W4 for soldiers with over 26 years of service for pay purposes.  This means that a W4 earns more retired pay than a 0-3.

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 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 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 commissioned or 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  W-4.

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 0-3, as provided by Title 10, United States Code, sections 1331-1337, the retired pay of the individual concerned will be calculated on pay grade W-4, 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:  

___JH___  __DPH__  __JTM___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____June Hajjar______
		        CHAIRPERSON

INDEX

CASE ID	ACAR200105305	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010313	
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.	129.04	
2.		
3.		
4.		
5.		
6.