PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           18 October 2001                   
	DOCKET NUMBER:   AR2001059263

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis		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 that he be placed on the Retired List as a Chief Warrant Officer Four (CW4).

3.  The applicant states that he served the majority of his military career as a warrant officer, and a CW4 earns more than a captain, the grade in which he was retired.

4.  The applicant’s military records show that he was commissioned as a second lieutenant, Army Reserve, and entered on active duty on 19 June 1967.  He was awarded the specialty skill identifier of rotary wing aviator, served in Vietnam from 23 August 1968 to 22 August 1969, was promoted to captain, and was honorably released from active duty and transferred to the Army Reserve Control Group (Reinforcement) on 18 June 1970.  His awards and decorations included the Distinguished Flying Cross, the Air Medal for Valor with 20 oak leaf clusters, and the Bronze Star Medal.

5.  On 13 August 1970 the applicant was granted Federal Recognition in the Army National Guard (ARNG).  He served as a unit member as a captain until his resignation on 29 July 1977.

6.  On 23 March 1978 the applicant was appointed a CW2, ARNG, and served as a warrant officer assigned to troop program units in the ARNG until his discharge from the ARNG on 31 August 1995 and transfer to the Retired Reserve.  His separation was due to the deactivation of his unit.

7.  Title 10, United States Code, Section 1401 and 1406b(2), provide that a person entitled to retire for non-regular service under Section 12731 of this title, shall have his retired pay computed on the monthly basic pay of the highest grade satisfactorily held at any time.  However, 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 any other rights and privileges vested in or enjoyed by commissioned officers.

3.  The determination that the highest grade satisfactorily held by the applicant was captain is unjust in that it has deprived him, and will continue to deprive him, of the increased retired pay which he would have received if he had been retired in pay grade CW4.
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 placement on the Retired List in the rank of captain (0-3) as provided by Title 10, United States Code, Section 12731, and without otherwise effecting his rank or status as a commissioned officer; the retired pay of the individual concerned will be calculated on pay grade CW4, 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 and 1406b(2).

BOARD VOTE:  

___fne __  ____mhm  ___bje __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________Fred N. Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011018	
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.		
2.		
3.		
4.		
5.		
6.