IN THE CASE OF:	  

		BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090005877 


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, in effect, that his retired pay be corrected to pay him as a first lieutenant (1LT)/O-1, the highest rank/grade he satisfactorily held while on active duty, instead of as a sergeant major (SGM)/E-9.  He also requests that he be paid the difference retroactively from his date of retirement to the present.

2.  The applicant states on 7 January 1975 he was advanced to First Lieutenant on the Retired List, yet he is still receiving retired pay as a Sergeant Major.

3.  The applicant provides:

	a.  a 26 March 2009 letter from his daughter;

	b.  a copy of DD Form 1A certificate appointing him as a Reserve Commissioned Officer in the grade of first lieutenant in the Army of the United States (AUS) on 13 July 1953;

	c.  a copy of a self-authored letter, dated 22 July 2008, to the Army Grade Determination Review Board;

	d.  a copy of his DD Form 2 (Retired Identification Card) showing his rank as first lieutenant;

	e.  a copy of a 3 September 2008 letter from the Senior Legal Advisor, Army Review Boards Agency to the applicant;

	f.  a copy of a 3 December 1981 letter from the Director, Retired Activities, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, to the applicant; and

	g. a copy of Office of The Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Letter Orders Number 97,458, dated 8 November 1974, advancing him in grade on the Retired List.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army (RA) Soldier.  He entered service on 24 March 1943 and he was honorably discharged on 30 September 1970 and placed on the Retired List as a sergeant major.  However, from 2 September 1949 to 30 January 1955, he served as an AUS officer in the U.S. Army Reserve (USAR).

2.  On 7 January 1975, the applicant was advanced on the Retired List to the rank of first lieutenant, which was the highest grade he satisfactorily held.

3.  The applicant’s AGPZ Form 977 (Data for Retired Pay) shows the applicant had 26 years and 28 days of creditable service for retired pay purposes.

4.  The Defense Finance and Accounting Service (DFAS) military pay chart, effective 1 January 1970, shows that for over 26 years of service the maximum monthly basic pay for a first lieutenant (with enlisted service) was $847.50 per month and the maximum monthly basic pay for a sergeant major was $903.60.

5.  A Soldier becomes entitled to retired pay upon completion of 20 years of service, regardless of age.  A Soldier who retires from active duty is paid an immediate monthly annuity based on a percentage of his or her retired pay computation base.  For persons who entered military service before 8 September 1980, the retired pay computation base is the final monthly basic pay being received at the time of retirement.  All Soldiers who first entered military service before 1 August 1986 have their retired pay computed at the rate of 2.5% of the retired pay computation base for each year of service.  The minimum amount of retired pay to which a member is entitled to compute his or her retired pay under this formula is therefore 50% of the retired pay computation base (20 years of service X 2.5%).  A 25-year retiree receives 62.5% of the computation base (25 years of service X 2.5%).  The maximum, reached at the 30-year mark, is 75% of the computation base (30 years of service X 2.5%).


6.  Title 10, U.S. Code, section 3964 provides that each retired RA enlisted member who is retired with less than 30 years of active service is entitled, when active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he/she satisfactorily served on active duty, as determined by the Secretary of the Army.

7.  Title 10, U.S. Code, section 3992 provides for re-computation of retired pay to reflect advancement on the retired list.  An enlisted member of the Army who is advanced on the retired list under Title 10, U.S. Code, section 3964 is entitled to re-compute his/her retired pay in accordance with this section, as follows:

	a.  Formula - The monthly retired pay of a member entitled to re-compute that pay under this section is computed by multiplying; (1) the member’s retired pay base by; (2) the retired pay multiplier (2.5) for the member’s years of creditable service.

	b.  Rounding to Next Lower Dollar - The amount computed above, if not a multiple of $1, shall be rounded to the next lower multiple of $1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired as an RA sergeant major; however, he also held a Reserve commission as a first lieutenant in the AUS.  Upon reaching 30 years of service in the RA and on the Retired List, he was entitled to be retired at the highest grade he held satisfactorily while on active duty, that being first lieutenant.

2.  The applicant was also entitled to a re-computation of his retired pay based upon his advancement on the Retired List.  However, in the applicant’s case, it was more advantageous for him to continue to be paid as a sergeant major, with a monthly basic pay of $903.60, as opposed to the monthly basic pay of a first lieutenant of $847.50.

3.  The applicant is being paid retired pay at the most advantageous rate for his particular situation.  While he has been advanced on the Retired List to first lieutenant, he continues to receive the higher retirement pay of a sergeant major.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20090005877



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ABCMR Record of Proceedings (cont)                                         AR20090005877



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