RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 April 2008 DOCKET NUMBER: AR20080000473 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. Ms. Catherine C. Mitrano Director Mr. Michael L. Engle Analyst The following members, a quorum, were present: Mr. Eric N. Andersen Chairperson Mr. Peter B. Fisher Member Mr. Jeffrey C. Redmann Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his military records to show that he retired as a chief warrant officer three (CW3), pay grade W3. 2. The applicant states, in effect, that he made a terrible mistake several years ago when he requested, and was granted, a change in his retired status to show that he was retired as a sergeant major (SGM), pay grade E-9. His desire is to be recognized as a retired CW3 even if he has to forfeit his higher retired pay as a sergeant major. 3. The applicant provides a copy of his amended retirement order. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 2 September 1947, the applicant enlisted in the Army National Guard. He served through several enlistments and was discharged on 17 December 1973, as a SGM, E9, for the purpose of accepting an appointment as a warrant officer. 3. On 18 December 1979, the applicant was promoted to CW3. 4. On 10 June 1992, the applicant was placed on the Army of the United States Retired List in pay grade W3, his highest grade satisfactorily held. 5. On 24 October 1992, the applicant petitioned this Board to correct his records to show his rate of retired pay based on his service as a SGM, E9. 6. On 23 February 1995, the Army Reserve Personnel Center, St. Louis, Missouri, noted that the retired pay of an E9 was higher than that of a W3 with the same amount of service. 7. On 8 November 1995, this Board changed the applicant's records to show that he was retired as a SGM, E9, effectively removing from his records his status as a CW3, pay grade W3. 8. Accordingly, Orders P-05-301988AO1, United States Army Reserve Personnel Center, St. Louis, Missouri, dated 17 May 1996, amended the applicant’s original retirement orders to change his retired status from CW3 to SGM. 9. Title 10, United States Code, provides that a person entitled to retire, under section 1331 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record clearly shows that the applicant’s highest rank and pay grade satisfactorily held was CW3, W3. It further shows that the most favorable formula for his retired pay is that of SGM, E9. Therefore, his records should be corrected to show that he is a retired CW3. Furthermore, his retired pay should be left unchanged since he is currently receiving retired pay based on his service as a SGM, E9. 2. Additionally, the applicant should be restored to all of the rights and privileges that accompany his status as a chief warrant officer three. BOARD VOTE: __PBF __ __ENA __ __JCR GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. amending his retirement orders showing that he was retired as a chief warrant officer three (CW3), effective 10 June 1992, with entitlement to receive retired pay based on his service as a sergeant major (SGM), pay grade E9. b. issuing to him a new identification card showing his retired status as a chief warrant officer three. __ Eric N. Andersen __ CHAIRPERSON INDEX CASE ID AR SUFFIX RECON YYYYMMDD DATE BOARDED YYYYMMDD 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. 2. 3. 4. 5. 6.