PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           26 February 2002
	DOCKET NUMBER:   AR2001061023

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Jo Ann H. Langston		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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, correction of his military records to show his entitlement to retired pay based on the formula most favorable to him based on his satisfactory service as both a chief warrant officer four/W-4 (CW4/W-4) and a captain/0-3 (CPT/0-3). 

3.  The applicant states, in effect, that he had satisfactorily served in and held the rank and pay grade of CW4/W-4 on the date of his retirement, which should entitle him to retired pay in this pay grade if it is more favorable than his current retired pay which is received based on the pay grade 0-3.  In support of his application, he submits, the following documents: Retirement Point Accounting System (RPAS) data; his active duty separation document (DD Form 214); his retirement order authorizing his placement on the Retired List in the rank and pay grade of CPT/0-3; and a Leave and Earnings Statement issued by the Defense Finance and Accounting Service (DFAS). 

4.  The applicant’s military records show that he was placed in the Retired Reserve in the rank and pay grade of CW4/W-4 and was placed on the Retired List, effective 10 July 1999, in the rank and pay grade of CPT/0-3, which was the highest rank and pay grade he held and in which he satisfactorily served.  The applicant had completed 27 years of qualifying service for retirement and 
37 years and 23 days of service for pay purposes at the time of his placement on the Retired List.  

5.  Title 10 of the United States Code, section 1401 indicates that Public Law 
99-348 amended this section of the law to add Section b (Use of Most Favorable Formula).  It 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, United States Code, Section 1406 provides the legal authority for providing retired pay.  Sub-paragraph b(2) states, in pertinent part, that a person who is entitled to retired pay for a non-regular service retirement should receive retired pay based on the highest pay grade they held and in which they satisfactorily served at anytime in the Armed Forces.

CONCLUSIONS:

1.  The Board notes the contention of the applicant that, in effect, his retired pay should be computed at the formula most favorable to him based on his satisfactory service as both a CW4/W-4 and CPT/0-3 and it finds this claim has merit.  

2.  By law, members being retired based on non-regular service age and service requirements are entitled to be placed on the Retired List and receive retired pay in the highest grade in which they satisfactory served at anytime in the Armed Forces.  In addition, the law stipulates that if a member is eligible for retired pay under more than one formula, they are entitled to receive retired pay based on the formula most favorable to them.

3.  The evidence of record confirms that the applicant satisfactorily served in the Armed Forces in both the pay grade W-4 and 0-3 and that he was placed on the Retired List as a CPT/0-3 on 10 July 1999.  Therefore, as prescribed by law, the Board finds that it would be appropriate to provide him retired pay based on the formula most favorable to him as a result of his satisfactory service as both a CPT/0-3 and a CW4/W-4, to include any back pay that may result from applying the most favorable pay formula provision of the law.

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 the individual concerned was placed on the AUS Retired List in the rank of CPT, effective 10 July 1999; and by providing him retired pay based on the formula most favorable to him based on his satisfactory active duty service in both pay grades 0-3 and W-4, to include any back pay due as a result.

BOARD VOTE:  

__JHL__   _ _RJW__  __RTD    GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    __JoAnn H. Langston__
		        CHAIRPERSON

INDEX

CASE ID	AR2001061023	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/26	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.