PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            3 June 2003                  
	DOCKET NUMBER:   AR2003084413

	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:

	Ms. Joann H. Langston		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Paul M. Smith		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 he currently receives retired pay as a CW2/W-2, and his retired pay would be higher if he were receiving it as a SGM/E-9.

4.  The applicant’s military records show that he served in an enlisted status in the United States Army Reserve (USAR) from 11 September 1971 through 
10 January 1986.  On 9 July 1976, he was promoted to the rank and pay grade of SGM/E-9, and on 8 September 1978, he was appointed a command sergeant major (CSM).  

5.  On 11 January 1986, the applicant was appointed a CW2/W-2 in the USAR, and he served in that rank and pay grade until being transferred to the Retired List on 13 February 2003.  

6.  On 18 December 2002, the Chief Transitions and Separations Branch, Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri, notified the applicant that his application for retired pay under Title 10  of the United States Codes, section 12731, was approved.  It further stated that he had been authorized retired pay as a CW2/W-2; however, retired pay as a CSM/E-9 is a higher rate of pay and would make a difference in his retired pay.  He was advised that the Army had adopted a policy of advising soldiers of their right to apply to the Army Board for Correction of Military Records (ABCMR) for a change in retired pay after retired pay has been authorized.  

7.  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. 

8.  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.

9.  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:  

__JHL  _JLP_  __PMS     GRANT AS STATED IN RECOMMENDATION

________  ________ __  GRANT FORMAL HEARING

________  ________  __ DENY APPLICATION

		Joann H. Langston
		 CHAIRPERSON

INDEX

CASE ID	AR2003084413	
SUFFIX		
RECON		
DATE BOARDED	2003/06/03	
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.