PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            8 October 2002
	DOCKET NUMBER:   AR2002072658

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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 advanced on the Retired List to the rank of Chief Warrant Officer Three (CW3).

3.  The applicant states, in effect, that he was retired in the rank of first lieutenant (1LT) at the time he attained retirement eligibility at age 60 because it was the highest rank he had held.  However, at the time he was placed on the Retired List, he was serving in the rank of CW3, which paid more than a 1LT.  Accordingly, he desires to receive the higher pay. 

4.  The applicant’s military records show that he was born on 27 January 1942. He enlisted in the California Army National Guard on 7 November 1963 and continued to serve until he was honorably discharged on 30 October 1968 for the purpose of enlisting in the Marine Corps Reserve (USMCR) in an enlisted status. He was commissioned as a USMCR second lieutenant on 7 February 1969 and was promoted to the rank of 1LT on 1 April 1970.  He continued to serve in the USMCR until he was discharged on 30 May 1978.  He enlisted in the Alabama Army National Guard (ALARNG) on 31 May 1988 and was appointed to the rank of Chief Warrant Officer Two on 1 February 1989.  He was promoted to the rank of CW3 on 1 June 1995 and on 5 July 2000, the Alabama State Military Department notified the applicant (20-year letter) that he had completed the required years of service to be eligible for Retired pay at age 60 (27 January 2002). 

5.  On 1 August 2001, he was honorably discharged from the ALARNG and was transferred to the United States Army Reserve Control Group (Retired) in the rank of CW3, where he remained as a CW3 until he attained retirement eligibility at age 60 in January 2002 and was retired in the rank of 1LT, the highest grade he held successfully.  

6.  Title 10, United States Code, provides, in effect, that a person entitled to retire shall have their 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 the highest amount of retired pay.

2.  The determination that the highest grade satisfactorily held by the applicant was 1LT (0-2) is correct; however, it is unjust in that it may deprive him, and will continue to deprive him, of the increased pay which he would receive if his retired pay is computed in the pay grade of W-3.
3.  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 to show that the highest grade satisfactorily held by the individual concerned was 1LT/0-2, and that he was placed on the Retired List in that pay grade effective the original date he was placed on that list, with his retired pay to be computed at the pay grade of W-3, if that rate is most advantageous to the individual concerned.

BOARD VOTE:  

___ja ___  ___jlp ___  __mm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Jennifer L. Prater____
		        CHAIRPERSON

INDEX

CASE ID	AR2002072658	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/08	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  341	136.0300/CHG RET GRD	
2.		
3.		
4.		
5.		
6.