IN THE CASE OF:
BOARD DATE: 20 October 2010
DOCKET NUMBER: AR20100009004
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 advancement on the retired list to the highest grade held and in effect, that he be paid retired pay at the rate that is most advantageous to him.
2. The applicant did not submit any additional statements in support of his claim.
3. The applicant provides no additional documents in support of his 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant initially enlisted in the Regular Army on 19 September 1941 and served until he was honorably discharged on 24 March 1943.
3. On 25 March 1943, the applicant was commissioned as a second lieutenant (2LT) in the U.S. Army Air Corps with a concurrent call to active duty.
4. The applicant was released from active duty on 5 October 1945 in the rank of 2LT/pay grade O-2.
5. The applicant was transferred to the Enlisted Reserve Corps (ERC) in February 1950. He remained in the ERC until 18 February 1951.
6. The applicant was recalled to active duty in an enlisted status on 19 February 1951 and continued to serve through a series of reenlistments.
7. The applicant was promoted to master sergeant (MSG)/pay grade E-8 on 16 December 1965. He continued to serve until he retired on 31 December 1967 in the rank of MSG/E-8.
8. The applicant was placed on the Retired List effective 1 January 1968 in the rank of MSG/E-8.
9. Title 10, United States Code, provides, in effect, that a person entitled to retire, shall have their retired pay computed on the monthly basic pay of the highest grade satisfactorily held at anytime. However, if entitled to retired pay computed under more than one pay formula or under any other provision of law, he 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, the law clearly intended to provide the highest amount of retired pay.
2. The determination that the highest grade satisfactorily held by the applicant was 2LT/O-2. However, it is unjust in that it would deprive him of the increased pay which he would receive if his retired pay is computed at the rate most advantageous to him, which appears to be in the pay grade of E-8.
3. Therefore, it would be equitable to correct the applicants records to show he was advanced on the retired list in the rank of 2LT and that he be paid retired pay at the rate that is most advantageous to him.
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:
a. showing the highest grade satisfactorily held by the individual concerned was 2LT;
b. showing he was placed on the Retired List in the rank of 2LT; and
c. his retired pay be computed at the pay grade that is most advantageous to him (E-8 if appropriate) with entitlement to all back pay and allowances due him.
_______ _ _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) AR20100009004
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100009004
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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