IN THE CASE OF:
BOARD DATE: 3 February 2009
DOCKET NUMBER: AR20080018520
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his military records to show his retired pay computed on the grade of chief warrant officer four (pay grade W4) rather than captain (pay grade O3).
2. The applicant states, in effect, that he was transferred to the Retired Reserve in pay grade W4.
3. The applicant provides a DD Form 214 MC (Armed Forces of the United States Report of Transfer or Discharge), NGB Form 22 (Report of Separation and Record of Service), and DD Form 108 (Application for Retired Pay Benefits) in support of this application.
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. The applicant entered the Marine Corps on 8 March 1968 as a commissioned officer and was released from active duty on 1 August 1973 in the rank of captain. He was appointed a Chief Warrant Officer Two in the Army National Guard on 24 February 1978, was promoted to CW4, and was honorably transferred to the Retired Reserve on 25 August 1995.
3. He was transferred from the Retired Reserve to the Army of the United States (the Retired List) as a captain, the highest grade he had satisfactorily held, on
20 April 2005, the day he reached age 60.
4. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under chapter 1223 of Title 10, United States Code (USC), sections 12731 to 12738. Paragraph 2-11 of this regulation covers computation of retired pay and paragraph 2-11c requires that each retirement applicant's record will be screened to determine the highest grade held during his or her military service.
5. Title 10, USC, sections 12771 and 1370 state, in pertinent part, that Reserve Officers, unless entitled to a higher grade, or to credit for satisfactory service in a higher grade, under some other provision of law, a person who is entitled to retired pay under chapter 1223 of this title shall, upon application under section 12731 of this title, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces, as determined by the Secretary concerned in accordance with this subsection.
6. Title 10, USC, section 1371 states that unless entitled to a higher retired grade under some other provision of law, a warrant officer retires, as determined by the Secretary concerned, in the permanent regular or reserve warrant officer grade, if any, that he held on the day before the date of his retirement, or in any higher warrant officer grade in which he served on active duty satisfactorily, as determined by the Secretary, for a period of more than 30 days.
7. Title 10, U. S. Code (USC), section 1401(b), "use of most favorable formula" states "if a person would otherwise be entitled to retired pay computed under
more than one formula of the table in subsection (a) or any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him."
DISCUSSION AND CONCLUSIONS:
1. In providing that an individual be retired in the highest grade satisfactorily held, Congress clearly intended to provide for the highest amount of retired pay.
2. In providing that he should receive retired pay based on the pay grade most favorable to him, it is not intended that he must forfeit any other rights and privileges vested in or enjoyed by commissioned officers.
3. The determination that the highest grade satisfactorily held for retired pay by the applicant was pay grade O-3 is unjust in that it has deprived him, and will continue to deprive him, of the greater retired pay which he would have received if he had been retired in pay grade W4.
BOARD VOTE:
___X___ ___X____ ____X___ 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 showing that; notwithstanding his placement on the Retired List in the grade of O-3 as provided by Title 10, United States Code, sections 12731 to 12738, and without otherwise effecting his rank or status as a commissioned officer; the retired pay of the individual concerned will be calculated on pay grade W4, a grade in which he also satisfactorily served, and the formula most favorable to him, as provided by Title 10, United States Code, section 1401.
_______ _X _______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080018520
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