PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 January 2002
	DOCKET NUMBER:   AR2001063470

	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. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		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, that his retired grade be corrected to the highest grade he held.  

3.  The applicant states, in effect, that he was commissioned a second lieutenant (2LT) in the United States Army Reserve (USAR) on 23 May 1973 and that he was promoted to the rank and pay grade of major/0-4 (MAJ/0-4) in the USAR on 
1 January 1985.  He also comments that he was released from active duty as a captain/0-3 (CPT/0-3) on 31 December 1984 and began service in an enlisted status as a sergeant/E-5 (SGT/E-5) on 1 January 1985.  He was appointed a warrant officer on 15 September 1988, and he served on active duty in that status until being released from active duty (REFRAD) for the purpose of retirement, in the rank and pay grade of chief warrant officer three/W-3 
(CW3/W-3), on 28 February 2001.  

4.  The applicant’s military records show that he initially entered active duty in the Army in an enlisted status on 21 December 1970.  He continuously served on active duty in that status for 2 years, 4 months, and 27 days until being honorably separated for the purpose of accepting a commission on 17 May 1972.

5.  On 23 May 1973, he was commissioned a 2LT in the USAR and he concurrently entered active duty in that status.  He continuously served on active duty as a commissioned officer for 11 years, 7 months, and 8 days until 
31 December 1984, at which time he was released from active duty (REFRAD) as a commissioned officer in the rank and pay grade of CPT/0-3.  

6.  On 1 January 1985, he was promoted to the rank and pay grade of MAJ/0-4 in the USAR; however, the record provides no evidence or indication that he ever served on active duty in that rank and pay grade.  

7.  Also on 1 January 1985, he reentered active duty in an enlisted status as a SGT/E-5.  He continuously served on active duty in that enlisted status for 
3 years, 8 months, and 14 days until being REFRAD in order to accept an appointment as a warrant officer on 14 September 1988.

8.  On 15 September 1988, he was appointed a warrant officer and immediately entered active duty in that status.  He continued to serve on active duty as a warrant officer for 12 years, 5 months, and 16 days until 28 February 2001, at which time he was REFRAD for the purpose of retirement.

9.  Orders Number 325-0006, dated 20 November 2000, issued by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, authorized the applicant’s REFRAD for the purpose of retirement on 28 February 2001 and his placement on  the Retired List on the following day.  It also assigned him a retired grade of CW3/W-3 and established that he was being retired under the provisions paragraph 6-14c(2), Army Regulation 600-8-24, after completing a total of 30 years, 6 months, and 14 days of active military service.

10.  Army Regulation 600-8-24 (Officer Transfers or Discharges) prescribes the policies and procedures for officer transfers to the USAR and discharges for active duty officers.  Paragraph 6-14c(2) contains the authority for the voluntary retirement of warrant officers who have completed more than 20 years of service. It states, in pertinent part, that any warrant officer with more that 20 years of service may request and with the permission of the Secretary of the Army retire under the provisions of Title 10 of the United States Code, section 1293.

11.  10 USC 1293 provides the legal authority for the length of service retirement of warrant officers who have completed between 20 and 30 years of active military service.  10 USC 1371 contains warrant officer retired grade provisions of the law and states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a warrant officer retires in the permanent regular or reserve warrant officer grade that he held on the day before the date of his retirement.

12.  10 USC 3911 provides the legal authority for the length of service retirement of commissioned officers who have completed twenty years or more years of active military service.  It states, in pertinent part, that a commissioned officer of the Army may request retirement upon the completion of at least 20 years of service, at least 10 years of which have been active service as a commissioned officer.  10 USC 1370 provides the legal authority for the assignment of retired grades to commissioned officers.  It states, in pertinent part, that commissioned officers of the Army, in the pay grades 0-1 through 0-3, may be retired in the highest grade held and in which they satisfactorily served on active duty for not less than six months. 

13.  10 USC 3991 provides standard retired pay formulas for computing length of service retired pay.  Section b, provides a general rule that mandates the use of the most favorable pay formula in computing retired pay.  This rule states, in pertinent part, that if a person would otherwise be entitled to retired pay computed under more than one formula he is entitled to be paid under the applicable formula that is most favorable to him.  The most favorable pay formula rule of law is further defined in 10 USC 1401. 

14.  10 USC 1401 indicates that 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.

CONCLUSIONS:

1.  The Board notes the contention of the applicant that his retired grade should reflect the highest grade he held and while he did not stipulate that his request was to receive the retired rank and pay grade of MAJ/0-4, his application does imply this may be his expectation.  

2.  The evidence of record verifies that the applicant was serving on active duty in an enlisted status on the same date he was promoted to MAJ/0-4 in the 
USAR.  Further, it confirms that he never served on active duty in that rank and pay grade. 

3.  By law, members are entitled to be placed on the Retired List in the highest commissioned officer grade in which they satisfactory served on active duty for more than six months if they had completed 10 or more years of active duty service in a commissioned officer status.  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. 

4.  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 1401, clearly intended to provide for the highest amount of retired pay.  However, the law in prescribing that a member should receive retired pay based on the pay grade most favorable to them, does not 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 officer status. 

5.  The evidence of record confirms the applicant served on active duty in a commissioned officer status for more than 10 years and satisfactorily served on active duty in the rank and pay grade of CPT/0-3 for more than 6 months.  As a result, the Board concludes he was eligible to be initially placed on the Retired List in that rank and pay grade, effective 1 March 2001. 

6.  In addition, as prescribed by law, the Board finds it would be appropriate to provide the applicant retired pay based on the formula most favorable to him based on his satisfactory active duty service as both a CPT/0-3 and a CW3/W-3, to include any back pay that may result from applying the most favorable pay formula provision of the law. 

7.  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 Retired List in the rank of CPT, effective 1 March 2001; 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-3, to include any back pay due as a result.

BOARD VOTE:  

__GDP__   _ _WTM__  __RTD     GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    __George D. Paxson__
		        CHAIRPERSON

INDEX

CASE ID	AR2001063470	
SUFFIX		
RECON		
DATE BOARDED	2002/01/24	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2001/02/28	
DISCHARGE AUTHORITY	AR 600-8-24  C6	
DISCHARGE REASON	Retirement 	
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.