| 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
first lieutenant/0-2 (1LT/0-2).
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 1LT/0-2, which is the highest rank and pay grade he held.
4. The applicant’s record confirms that he served as a commissioned officer from 1 July 1957 through 31 December 1964, and that the highest commissioned officer rank and pay grade he attained was 1LT/0-2. The record also shows that the applicant was promoted to SGM/E-9 on 19 December 1988, and served in that enlisted rank and pay grade until his retirement on 31 May 1989.
5. On 31 May 1989, he was discharged from the Army National Guard (ARNG). The Report of Separation (NGB Form 22) issued to him upon his discharge, as amended by a Correction to NGB Form 22 NGB Form 22A), dated 9 January 1990, confirms that he completed 20 years, 8 months, and 7 days of service for that particular period and a total of 36 years 10 months, and 5 days of total service for pay. This document also verifies that he held the rank and pay grade of sergeant major/E-9 (SGM/E-9) on the date of his discharge and that he was transferred to the United States Army Reserve (USAR) Retired Reserve.
6. A Data for Retired Pay (DA Form 3713), dated 20 March 1990, prepared on the applicant during his processing for non-regular retirement and retired pay confirms that on 3 December 1989, he was placed on the Retired List in the rank and pay grade of 1LT/0-2, which was the highest rank he held and in which he satisfactorily served.
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 Untied 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. 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. 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, clearly intended to provide for 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 him, 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 SGM/E-9 and a 1LT/0-2, and that he was placed on the Retired List in the highest grade he held, which was 1LT.
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 1LT. However, it also concludes that denying the applicant retired pay based on the formula most favorable to him based on his satisfactory service as a
SGM/E-9 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 facts of this case, Board finds that it would be appropriate for the applicant to retain the grade title of 1LT on the Retired List. Further, the Board concludes that the applicant should receive retired pay under the most favorable pay provisions of the law based on his satisfactory service as both a SGM/E-9 and a 1LT/0-2, to include any back retired pay due as a result.
6. 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-9 and the pay grade of 0-2, to include any back pay due as a result.
BOARD VOTE:
__SAC__ __RKS _ __ AU __ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
_ _Samuel A. Crumpler_ __
CHAIRPERSON
| CASE ID | AR2002080110 |
| 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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