PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:           16 February 2000                 
	DOCKET NUMBER:   AR1999030756

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller		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 correction of his military records to show his retired pay computed on the grade of E-8 instead of W-2.

3.  The applicant states that the retired pay for a master sergeant (MSG), pay grade E-8 is higher than that of a chief warrant officer two (CW2), pay grade 
W-2.

4.  The applicant’s military records show that he served in the Massachusetts Army National Guard from July l956 through April l964.  He enlisted in the US Army Reserve on 26 May l977 and his service thereafter was continuous until he was voluntarily transferred to the US Army Retired Reserve on 26 June l996.  He was promoted to the rank of MSG, pay grade E-8 effective 23 July l989.  He was appointed a CW2 on 3 February l991.  He was placed on the US Army Retired List effective 9 May l999, in pay grade W-2, his highest grade satisfactorily held.  He had more than 26 years service creditable for retired pay purposes.

5.  Title 10, United States Code, provides that a person entitled to retire in accordance with sections 12731-12738 of that title, shall have his retired pay computed on the monthly basic pay of the highest grade satisfactorily held at any time.  However, under section 1401 of the same statute, 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.

6.  The Defense Finance and Accounting Service-Cleveland Center, has advised that the retired pay for a CW-2, with more than 26 years service, who retires in l999, is $3114 per month.  The retired pay for an E-8, with more than 26 years service, who retires in l999, is $3308.40 per month.

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 those other rights and privileges vested in or enjoyed by commissioned or warrant officers.

3.  The determination that the highest grade satisfactorily held by the applicant is unjust in that it has deprived him, and will continue to deprive him, of the increased pay which he would have received if he had been retired in pay grade  E-8.

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 US Army Retired List in the grade of CW2, as provided by title 10, United States Code, sections 12731-12738, the retired pay of the individual concerned will be calculated on pay grade E-8, 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.

BOARD VOTE:  

__AAO  __CLG____  __MW___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_ARTHUR A. OMARTIAN_
		        CHAIRPERSON

INDEX

CASE ID	AR1999030756	
SUFFIX		
RECON		
DATE BOARDED	20000216	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY	DASA	
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.