PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 February 2002
         DOCKET NUMBER: AR2001064115


         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. June Hajjar		Chairperson
Ms. Karol A. Kennedy		Member
Mr. Roger Able		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.

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2. The applicant requests, in effect, that he be advanced on the Retired List to the rank and pay grade of (CPT/03), the highest rank and pay grade in which he satisfactorily served while on active duty.

3. The applicant states, in effect, that he served satisfactorily on active duty in the rank and pay grade of CPT/0-3 and is now eligible to be advanced on the Retired List to that grade. In support of his application, he submits a letter, dated 2 August 1996, from the Chief, Retirement Services, United States Army Reserve Personnel Center (ARPERSCOM).

4. The applicant’s military records show that on 27 June 1966, he was inducted into the Army of the United States. He continuously served on active duty in an enlisted status for 1 year and 10 days until 6 July 1967, at which time he was honorably separated, in the rank of sergeant/E-5, for the purpose of accepting a commission.

5. On 7 July 1967, the applicant was commissioned a second lieutenant (2LT) in the United States Army Reserve (USAR) and he concurrently entered active duty in that commissioned officer status. On 7 July 1969, he was promoted to the rank and pay grade of CPT/0-3 and he continued to serve on active duty in that grade until 29 August 1975, at which time he was honorably REFRAD in order to accept a USAR warrant officer appointment. On the date of his separation from this period of active duty he had completed a total 8 years, 1 months, and
23 days of active military service as a commissioned officer.

6. On 30 August 1975, the applicant was placed in a non-active status in the USAR. On 12 December 1980, he was appointed a USAR warrant officer and on 28 December 1980, he entered active duty in that status. On 3 September 1980, he was promoted to the rank and pay grade of chief warrant officer three/W-3 (CW3/W-3) and he continued to serve on active duty as a warrant officer
until 31 October 1991.

7. A Data for Retired Pay (DA Form 3713), dated 6 June 1991, confirms that the applicant was being REFRAD for the purpose of retirement on 31 October 1991, after completing a total of 20 years and 14 days of active military service. Orders Number S108-11, dated 6 June 1991, issued by Total Army Personnel Command (PERSCOM), authorized his REFRAD for the purpose of retirement on 31 October 1991, and his placement on the Retired List on the following day in the retired grade of CW3/W-3.

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8. 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
(10 USC 1293).

9. 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 provides retired warrant officer retired grade provisions of the law and states, in pertinent part, that unless entitled to a higher grade under some other provision of the law, a warrant officer retires in the grade they held on the day before the date of retirement.

10. 10 USC 1370 (d) provides satisfactory service provisions for commissioned officers in the grades of 0-1 through 0-3. 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. 10 USC 3964 provides the legal authority for the advancement of warrant officers on the Retired List. It states, in pertinent part, that a warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which they satisfactorily served on active duty.

11. 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, 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.

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CONCLUSIONS:

1. The Board notes the applicant’s contention that he is entitled to be advanced to the rank and pay grade of CPT/0-3 on the Retired List and it finds this claim has merit.

2. By law, when their active service plus retired service equals 30 years, warrant officers are entitled to be advanced on the Retired List to the highest commissioned officer grade in which they satisfactorily served on active duty. The law stipulates that service of more than 6 months is a qualifying period of satisfactory service for the commissioned officers grades of 0-1 through 0-3. 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. 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.

4. The evidence of record confirms that the applicant satisfactorily served on active duty in the rank and pay grade of CW3/W-3 and was properly placed on the Retired List in that retired grade on 1 November 1991. It also verifies that the highest rank he held and in which he satisfactorily served on active duty was CPT/0-3. Therefore, the Board finds the applicant was eligible to be advanced to that rank on the Retired List on 17 October 2001, when his active duty service plus his retired service equaled 30 years.

5. 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.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was advanced to the rank of CPT on the Retired List on 17 October 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:

________ ________ ________ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001064115
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/05
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.