RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            December 9, 2003                  
	DOCKET NUMBER:    AR2003089639

	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. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Eloise C. Prendergast		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that he receive retired pay based on the retired pay formula most favorable to him.  

2.  The applicant states, in effect, that he satisfactorily served in both the rank and pay grade of First Lieutenant/0-2 (1LT/0-2) and Chief Warrant Officer Two/W-2 (CW2/W-2).  He claims that receiving retired pay as a CW2-W-2 would be more favorable to him than receiving retired pay as a 1LT/0-2, which is what he receives now.  He also states that he requested to be retired as a CW2, but was told by Army Reserve Personnel Command (ARPERSCOM) officials that would have to apply to this Board in order to accomplish that action.  

3.  In support of his application, the applicant provides a copy of an ARPERSCOM letter, dated 19 July 2002, a copy of his retirement orders, and promotion documents for CW2 and 1LT.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records show that he completed the necessary Reserve Component service to qualify for a reserve retirement and non-regular retired pay at age 60.

2.  Orders Number P07-280469, dated 19 July 2002, issued by the ARPERSCOM, authorized the applicant’s retirement and placement on the Retired List, effective 7 September 2002.  These orders confirm that the applicant was placed on the Retired List in the rank and pay grade of 1LT/0-2, based on his satisfactory service in that rank and pay grade from 9 August 1967 through 15 May 1969, at which time he was honorably discharged from the United States Army Reserve (USAR).

3.  The applicant’s record also confirms that he was appointed a Warrant Officer One (WO1) in the Army National Guard (ARNG) on 1 October 1992, and that he was promoted to CW2/W-2 on 15 May 1996.  He served in that rank and pay grade in the ARNG until being transferred to the Retired Reserve on 
30 November 1997.  

4.  Title 10 of the United States Code, section 12731 provides the legal authority for age and service retirement requirements for non-regular retirement.  It states, in pertinent part, that a member is entitled, upon application, to retired pay under this provision of the law if they are at least 60 years of age; have performed at least 20 years of service; and performed the last eight years of qualifying service while a member of a Reserve Component. 

5.  Title 10 of the United States Code, section 1401 (computation of retired pay) provides computation formulas for retired pay.  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.

6.  Title 10 of the United States Code, section 1406 provides the legal authority for computing final retired base pay.  It states, in pertinent part, that members retiring under non-regular service retirement provisions of the law are entitled to receive retired pay based on the highest grade held satisfactorily by the person at any time in the armed forces. 

DISCUSSION AND CONCLUSIONS:

1.  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 1406, clearly intended to provide for the highest amount of retired pay.  

2.  Neither does the law, in prescribing that a member should receive retired pay based on the pay grade most favorable to them, 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 or warrant officer status.  

3.  Notwithstanding the fact that the applicant is receiving retired pay in the highest rank and pay grade he satisfactorily held, it appears he is receiving retired pay based on a formula that is not the most favorable to him. 

4.  By law, a member is authorized to receive retired pay under the most favorable pay formula.  Thus, the Board finds that it would be appropriate to allow the applicant to remain on the Retired List in his commissioned officer rank of 1LT and to provide him retired pay based on the formula most favorable to him as a result of his satisfactory service as both a 1LT/0-2 and a CW2/W-2.

BOARD VOTE:

_MM___  __EP__  __RJW__  GRANT RELIEF 

________  ________  ______GRANT FORMAL HEARING

________  ________  ______ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the rank of the individual concerned as First Lieutenant on the Retired List; by providing him retired pay based on the pay formula most favorable to him based on his satisfactory service in both pay grades 0-2 and 
W-2, and by paying him any back pay and allowances due if it is determined he did not receive retired pay based on the most favorable formula provisions of the law. 

		Mark D. Manning
				             CHAIRPERSON

INDEX

CASE ID	AR2003089639	
SUFFIX		
RECON		
DATE BOARDED	2003/12/09	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2002/09/07	
DISCHARGE AUTHORITY	10 USC 12731	
DISCHARGE REASON	RC Retirement 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400	
2.		
3.		
4.		
5.		
6.