PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  17 August 2000
	DOCKET NUMBER:  AR1999033198

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Melvin H. Meyer		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 Master Sergeant (MSG), E-8 instead of Chief Warrant Officer Two (CW2), pay grade W2.

3.  The applicant states, in effect, that he would receive more pay if his records showed he retired as a MSG, a grade he also satisfactorily held.

4.  The applicant’s military records show that he enlisted in the Army National Guard on 15 September 1958.  He was promoted to MSG on 15 July 1978.  On 16 February 1984, he was appointed a warrant officer in the Army National Guard in the grade of CW2.  On 14 October 1988, he was transferred to the U. S. Army Reserve Control Group (Retired Reserve) in pay grade W-2, with entitlement to retired pay at age 60 (13 November 2000).

5.  Title 10, U. S. Code, provides that a person entitled to retire under section 12731 shall have his retired pay computed on the monthly basic pay of the highest grade satisfactorily held at anytime.  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.

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, Congress did not intend that an individual must forfeit those other rights and privileges vested in or enjoyed by commissioned or warrant officers.

3.  The Board concludes that paying the applicant retired pay in the highest grade satisfactorily held by him 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, it would be in the interest of justice to correct the applicant’s records 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 pay grade W-2, as provided by Title 10, U. S. Code, sections 12731 - 12739, 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, U. S. Code, section 1401.

BOARD VOTE:  

___sw___  __ls___  __mm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Sherri V. Ward___
		        CHAIRPERSON

INDEX

CASE ID	AR1999033198	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000817	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.128	Retired pay	
2.		
3.		
4.		
5.		
6.