| Mr. Carl W. S. Chun | Director | ||
| Mr. William Blakely | Analyst |
| Mr. Samuel A. Crumpler | Chairperson | ||
| Ms. Regan K. Smith | Member | ||
| Mr. Antonio Uribe | Member |
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 master sergeant/E-8 (MSG/E-8) and a
warrant officer one/W-1 (WO1/W-1).
3. The applicant states, in effect, that he had satisfactorily served in an enlisted status in a rank and pay grade that would entitle him to a more favorable rate of retired pay than the retired pay he now receives based on his satisfactory service as a WO1, which is the highest rank he held.
4. The applicant’s military records show that Orders 4-3, dated 14 January 1986, issued by Headquarters, First United States Army, Fort George Meade, Maryland, assigned the applicant to the Army Reserve Control Group
(Retired Reserve) in pay grade E-8, effective 15 January 1986.
5. In connection with the processing of this case, a member of the Board staff contacted Defense Finance Accounting Service (DFAS) officials, who confirmed that the applicant was placed on the Retired List in the rank and pay grade of WO1/W-1, effective 20 February 1994. In addition, the applicant had 26 years of qualifying service and 38 years, 4 months, and 11 days of service for pay purposes.
6. The maximum value for retired pay for pay grade W-1 is $2410.00 and $2870.40 for pay grade E-8 for soldiers with over 26 years of service for pay purposes. This means that an E-8 earns more retired pay than a W-1.
7. Title 10 of the United States Code, section 3961, provides the legal authority for the assignment of retired grades. It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve enlisted member of the Army who retires other than for physical disability retires in the regular or reserve grade that he/she holds on the date of his retirement.
8. Title 10 of the United States Code, section 1406 provides the legal authority for the computation of retired pay. It states, in pertinent part, that in the case of a Non-Regular service retirement, the member is entitled to retired pay based on the highest grade held satisfactorily at any time in the Armed Forces.
9. Title 10 of the United States Code, section 1401 (computation of retired pay) provides computation formulas for retired pay. Section b (Use of Most Favorable Pay Formula) 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. In providing that an individual be retired in the highest grade satisfactorily held the law, as outlined in the most favorable pay provisions of Title 10 of the United States Code, section 1401, it was clearly intended to provide members the highest amount of retired pay.
2. However, in prescribing that a member should receive retired pay based on the pay grade most favorable to them, the law does not intend that these members 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. The evidence of record confirms that the applicant held and satisfactorily served as both a MSG/E-8 and a WO1/W-1, and that he was placed on the Retired List in the highest grade he held, which was WO1.
4. The Board finds it would be unjust to deprive the applicant of the earned recognition, rights, and privileges due him based on his satisfactory service as a WO1. However, it concludes that denying the applicant retired pay based on the formula most favorable to him based on his satisfactory service as a MSG/E-8 would clearly violate 10 USC 1401 if it resulted in the applicant receiving less retired pay than that to which he is entitled.
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 providing the individual concerned retired pay based on the pay formula most favorable to him as a result of his satisfactory service in both the pay grade of
E-8 and the pay grade of W-1, to include any back pay due effective 20 February 1994.
BOARD VOTE:
__SAC__ __RKS _ __ AU __ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
_ _Samuel A. Crumpler_ __
CHAIRPERSON
| CASE ID | AR2002079029 | |
| SUFFIX | ||
| RECON | YYYYMMDD | |
| DATE BOARDED | 2003/02/11 | |
| 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. | 131.0000 | |
| 2. | ||
| 3. | ||
| 4. | ||
| 5. | ||
| 6. |
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