BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140005977 


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 that his retired grade be changed to show he was retired in the pay grade of O3E (captain (CPT) with enlisted service) and that he be paid as a traditional reservist based on his total retirement points. 

2.  The applicant states, in effect, that he was serving on active duty in the Georgia Army National Guard (GAARNG) in the pay grade of E-6 when he was retired by reason of permanent disability with a 30% disability rating.  However, he had 8 years of prior service in the U.S. Marine Corps Reserve (USMCR) as a CPT on active duty and his retired pay would be higher if he was retired as a traditional reservist based on his total retirement points.  

3.  The applicant provides a one-page letter explaining his application and a list of enclosures with his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in 1952 and enlisted in the Marine Corps on 
17 August 1971.  He served on active duty until he was honorably released from active duty (REFRAD) on 16 August 1973 and was transferred to the USMCR.  On 15 June 1978, he accepted a commission as a second lieutenant in the Marine Corps with a concurrent call to active duty.  He was REFRAD as a first lieutenant on 1 July 1987 and was transferred to the USMCR.  He had served     5 years, 11 months, and 4 days of active commissioned service.  He was promoted to the rank of CPT on 1 October 1983 and on 10 February 1992, he was ordered to active duty in support of Operation Desert Shield/Storm.  On     19 June 1991, he was REFRAD and was transferred back to the USMCR.  He had served 4 months and 10 days of active service.  On 18 November 1991, per his request, he was transferred to the Retired Reserve.  

2.  On 29 October 2004, he enlisted in the GAARNG in the pay grade of E-5 for a period of 1 year.  He was ordered to active duty in support of Operation Iraqi Freedom on 3 January 2005 and deployed to Iraq/Kuwait during the period 20050516 – 20060420.  He reenlisted for a period of 6 years while in Iraq and was REFRAD on 5 June 2006.

3.  On 27 March 2009, he was ordered to active duty in support of Operation Enduring Freedom.  He deployed to Afghanistan during the period 20090425 – 20100404.  He was promoted to the pay grade of E-6 on 18 August 2010.

4.  The medical board proceedings pertaining to the applicant’s discharge are not present in the available records.  However, his DD Form 214 shows he was retired in the pay grade of E-6 on 27 December 2013 under the provisions of Army Regulation 635-40, due to disability, permanent (enhanced) with a 30% disability rating.

5.  A review of his official records failed to show that a grade determination was made at the time of his retirement or that the applicant was afforded the opportunity to elect a non-regular retirement.

6.  10 USC 1372 states a member who is retired for disability is entitled to the grade equivalent to, in part, the highest grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.

7.  10 USC 1406 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.  At the time the applicant was retired by reason of permanent disability, he was a Reserve Component Soldier serving on active duty in the pay grade of E-6 and was 61+ years of age.  He had already received his 20-Year letter and was eligible to retire in the highest grade he served in, which was O3-E.

2.  The applicant served on active duty as a commissioned officer for 5 years,   11 months, and 5 days and was REFRAD in the rank of 1LT.  He was subsequently ordered to active duty in the rank of CPT for a period of 4 months and 10 days.

3.  The highest grade the applicant held on active duty was CPT (O3-E); however, he was placed on the Retired List in the pay grade of E-6 instead of the pay grade of O3-E.

4.  Accordingly, his records should be corrected to show that he applied for advancement on the Retired List prior to 27 December 2013, that his request was timely approved, and that he was placed on the Retired List in the rank and pay grade of CPT O3-E effective 27 December 2013, with entitlement to all back pay and allowances that flow from that change.

5.  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.
Therefore, since the applicant was eligible for non-regular retired pay at the time of his retirement for permanent disability, he should be paid retired pay at the rate that is most advantageous to him.

6.  Accordingly, computations should be completed and the applicant be advised of the results and afforded the opportunity to select the rate he desires once the rates have been computed by the U.S. Army Human Resources Command (HRC) and the Defense Finance and Accounting Service (DFAS).

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 he applied for advancement on the Retired List prior to 27 December 2013, that his request was timely approved, and that he was placed on the Retired List in the rank and pay grade of CPT O3-E effective 28 December 2013, with entitlement to all back pay that flow from that change after computations have been made by the HRC and DFAS and the applicant is afforded the opportunity to select the rate he desires.




      _______ _  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)                                         AR20140005977





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ABCMR Record of Proceedings (cont)                                         AR20140005977



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