PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           29 May 2003                   
	DOCKET NUMBER:   AR2003089642

	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. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Frank C. Jones, II		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 he receive the most favorable retired pay to which he is entitled based on his having satisfactorily served in both the rank and pay grade of Sergeant Major/E-9 (SGM/E-9) and Chief Warrant Officer Two/W-2 (CW2/W-2).

3.  The applicant states, in effect, that retirement pay for a SGM/E-9 is greater than that of a CW2/W-2.

4.  The applicant’s military records show that he served in an enlisted status in the Regular Army (RA) from 12 July 1960 through 4 January 1967.  On 
5 January 1967, he was appointed a Warrant Officer One (WO1) in the United States Army Reserve (USAR) and concurrently entered active duty in that status. On 15 May 1968, he was promoted to CW2/W-2, and on 9 April 1972, he was honorably separated from active duty in that rank and pay grade.  

5.  On 5 January 1982, the applicant entered the USAR in an enlisted status as a staff sergeant.  He served in a Troop Program Unit (TPU) in Mattydale, New York, until 22 July 1988.  On 23 July 1992, he was promoted to SGM/E-9, while he was serving as an Individual Mobilization Augmentee (IMA).  

6.  On 12 July 1993, the Chief, Retired Activities Directorate, Army Reserve Personnel Command (ARPERSCOM), published a memorandum (“Twenty Year Letter”) notifying the applicant that he had completed the required years of service necessary and was eligible to receive retired pay at age 60 which, based on his birth date of 18 December 1942, would be on 18 December 2002.  

7.  On 13 October 1994, the applicant was transferred to the Retired Reserve.  At the time, he held the rank and pay of SGM/E-9, and he had completed 20 or more of creditable years of service for retirement.  The applicant confirms that he is now receiving retired pay as a CW2/W-2.  

8.  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. 

9.  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.

10.  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. 

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 warrant officer rank of CW2 and to provide him retired pay based on the formula most favorable to him as a result of his satisfactory service as both a SGM/E-9 and a CW2/W-2.

5.  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 the rank of the individual concerned as CW2 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 E-9 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. 

BOARD VOTE:  

___FCJ__  _LLS____  __LE__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Luther L. Santiful
		  CHAIRPERSON

INDEX

CASE ID	AR2003089642	
SUFFIX		
RECON		
DATE BOARDED	2003/05/29	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  307	129.0500	
2.  306	129.0400	
3.		
4.		
5.		
6.