PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 January 2002
	DOCKET NUMBER:   AR2001058576

	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:

	Mr. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		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, in effect, that his retired rank and pay grade be changed to major (MAJ/04). 

3.  The applicant states, in effect, that he served on active duty in a commissioned status for over the 10 years and in the grade of MAJ/0-4 for over 
2 years and should have been retired in that rank.  He indicates that he was commissioned as a warrant officer in June 1987 and continuously served on active duty in a commissioned officer status until being released from active duty (REFRAD) for the purpose of retirement on 31 July 1999.  He also comments that he was promoted to the rank of MAJ/0-4 on 1 April 1997, and that he served in that rank for over 2 years prior to retirement.  In support of his application, he submits an Oath of Office (DA Form 71) and a copy of the certificate awarding him the Legion Of Merit.

4.  The applicant’s military records show that he served on active duty in an enlisted status for 8 years, 9 months, and 29 days, from 10 September 1973 to 
8 July 1982, at which time he was honorably discharged, in the rank and pay grade of staff sergeant/E-6, in order to accept an appointment.

5.  On 9 July 1982, the applicant was appointed a warrant officer one (WO1) in the USAR; on 3 June 1987, he was commissioned a warrant officer, in the rank and pay grade of chief warrant two (CW2); and on 1 December 1988, he was promoted to chief warrant officer three (CW3).  

6.  The applicant served on active duty in a commissioned warrant officer status for a total of 4 years, 8 months, and 1 day, until 3 February 1992, at which time he was honorably discharged in order to accept a commission in the rank of 
(CPT)/0-3).  On 4 February 1992, he concurrently entered active duty as a CPT/0-3 and he was promoted to MAJ/0-4 on 1 April 1997.  He continued to serve in that rank and pay grade until being REFRAD for the purpose of retirement on 31 July 1999.

7.  Orders Number 117-0001, dated 27 April 1999, issued by Department of the Army, Personnel Service Support Team, MacDill Air Force Base, Florida, authorized the applicant’s REFRAD for the purpose of retirement on 31 July 1999.  It also directed his placement on the Retired List on 1 August 1999, in retired grade of CW3/W-3.  

8.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the policy and procedure for active duty transfers and discharges.  Chapter 6 contains guidance on officer retirements.  Paragraph 6-13 contains guidance on the retirement of Physicians Assistants (PA).  It states, in pertinent part, that PAs who were on active duty as of 5 December 1990, will have their commissioned warrant officer service applied toward the 10 years of total active commissioned service necessary for retirement as a commissioned officer.  It further provides that they may elect to retire in the highest commissioned officer grade or the highest warrant officer grade they held on active duty. 

9.  Title 10 of the United States Code, section 1293 (10 USC 1293) provides the legal authority for the length of service retirement of warrant officers who have completed between 20 and 30 years of active military service.  10 USC 1371 contains warrant officer retired grade provisions of the law and states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a warrant officer retires in the permanent regular or reserve warrant officer grade that he held on the day before the date of his retirement.

10.  10 USC 101b contains legal definitions for personnel in general and provides the definition of a commissioned officer.  It states, in pertinent part, that the term commissioned officer includes a commissioned warrant officer.  10 USC 3911 provides the legal authority for the length of service retirement of Regular or Reserve commissioned officers and it states, in pertinent part, that they may retire as commissioned officers if they have at least 20 years of service, 10 years of which have been active duty service as a commissioned officer.  10 USC 1370 provides that in order to be eligible for voluntary retirement in a grade of second lieutenant through MAJ, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than
6 months. 

11.  10 USC 3991 provides standard retired pay formulas for computing length of service retired pay.  Section b, provides a general rule that mandates the use of the most favorable pay formula in computing retired pay.  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. 

12.  10 USC 1401 indicates that 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.  The Board notes the applicant’s contention that his retired grade should be changed to MAJ/0-4 and it finds this claim has merit.  

2.  By law and regulation, the definition of a commissioned officer includes a commissioned warrant officer.  Further, a member retiring for length of service may be placed on the Retired List as a commissioned officer if they had served on active duty in a commission status for 10 or more years.  In addition, by regulation, a PA who was on active duty on 5 December 1990 has the option of selecting the highest commissioned officer grade or highest warrant officer grade they held on active duty as their retired grade.  

3.  In addition, the law provides that members are entitled to be placed on the Retired List in the highest commissioned officer grade in which they satisfactory served on active duty for more than six months if they had completed 10 or more years of active duty service in a commissioned officer status.  In addition, the law stipulates that if a member is eligible for retired pay under more than one formula, they are entitled to receive retired pay based on the formula most favorable to them. 

4.  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 1401, clearly intended to provide for the highest amount of retired pay.  However, 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 officer status. 

5.  The evidence of record confirms that the applicant satisfactorily served on active duty in the rank and pay grade of CW3/W-3 and that the highest rank the applicant was promoted to, held, and satisfactorily served in while on active duty was MAJ/0-4.  It also verifies that he served on active duty in a commissioned officer status for more than 10 years, which included his satisfactory service as a commissioned warrant officer.  As a result, the Board concludes he was eligible to be initially placed on the Retired List in the rank and pay grade of MAJ/0-4, effective 1 August 1999.

6.  In addition, as prescribed by law, the Board finds it would be appropriate to provide the applicant retired pay based on the formula most favorable to him based on his satisfactory active duty service as both a MAJ/0-4 and a CW3/W-3, to include any back pay that may result from applying these most favorable pay formula provisions of the law. 

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was placed on the Retired List in the rank of MAJ, effective 1 August 1999, and by providing him retired pay based on the formula most favorable to him based on his satisfactory active duty service in both pay grades 0-4 and W-3, to include any back pay due as a result of this correction.

BOARD VOTE:  

__GDP__   _ _WTM__  __RTD     GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    __George D. Paxson__
		        CHAIRPERSON

INDEX

CASE ID	AR2001058576	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/01/24	
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.