IN THE CASE OF:	  

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150002407 


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 retired pay in the rank of command sergeant major (CSM)/E-9 instead of being paid as a major (MAJ)/O-4.

2.  The applicant states, in effect:

* he served satisfactorily, and with sufficient time, both as a CSM and as a MAJ
* because of the requirement to be retired at the higher rank, he is now receiving retired pay as a MAJ
* he would receive $79 more a month, however, if he were paid at the pay rate for a CSM
* as such, he requests to be paid at the higher rate

3.  The applicant provides:

* Orders Number 210-236 dated 29 July 2010, issued by the Florida Army National Guard (FLARNG), showing the applicant was promoted to sergeant major (SGM)/E-9 with a date of rank (DOR) and effective date of 7 August 2010
* Orders Number 274-026 dated 1 October 2014, issued by the FLARNG, showing the applicant was discharged from the FLARNG and assigned to the Retired Reserve effective 30 January 2015
* ARNG Retirement Points History Statement - Application for Retirement Pay, prepared on 30 December 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 29 August 1973.  He entered the U.S. Military Academy (USMA) Preparatory School and 
on 14 May 1975, he received notice he had been accepted into the USMA class of 1979.  

2.  On 28 August 1977 the applicant was honorably released from active duty.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 
4 years of net active creditable service.  

3.  Orders Number 71-1-A-130, dated 6 June 1979, issued by the U.S. Army Military Personnel Center shows the applicant was appointed as a Transportation Corps commissioned officer, effective 6 June 1979, following graduation from the USMA.  He executed his oath of office on 6 June 1979.

4.  On 1 July 1990 he was honorably discharged from active duty.  His rank/grade is shown as captain/O-3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 years and 26 days of net active creditable service, with 4 years of prior active service.

5.  The applicant was appointed as a Transportation Corps commissioned officer in the U.S. Army Reserve (USAR), and executed his oath of office on 1 February 1991.

6.  He was promoted to MAJ with an effective date of 5 June 1992.

7.  On 9 May 2000 he was notified he was not selected for promotion to the rank of lieutenant colonel.  His records do not show when he was discharged from the USAR as a commissioned officer.

8.  On 26 June 2000 he enlisted in the FLARNG.  On 3 January 2007, he received his 20-year letter, showing eligibility to receive retired pay at age 60.

9.  Orders Number 210-236 dated 29 July 2010, issued by the FLARNG, shows the applicant was promoted to SGM with a date of rank (DOR) and effective date of 7 August 2010.

10.  Orders Number 274-026 dated 1 October 2014, issued by the FLARNG, states the applicant was discharged from the FLARNG and assigned to the Retired Reserve effective 30 January 2015.

11.  A National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) shows he was honorably discharged from the FLARNG on 30 January 2015.  His rank/grade is shown as CSM and he completed 14 years, 7 months, and 5 days of net service, with 11 years, 9 months, and 1 day of prior Reserve Component Service.  He also completed 15 years and 26 days of prior active Federal service.  

12.  Orders c01-590626, dated 22 January 2015, issued by the U.S. Army Human Resources Command (HRC), show the applicant was placed on the Retired List on 31 January 2015 in the retired rank of MAJ.

13.  Title 10, United States Code (USC), 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 retirement.  

14.  Title 10, USC, 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. 

15.  Title 10, USC, 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.

DISCUSSION AND CONCLUSIONS:

1.  Title 10, USC, sections 1401 and 1406, clearly shows an intent to allow an individual to retire in the highest grade satisfactorily held and to be paid at the highest rate of retired pay available for that individual.  In so prescribing, however, there is no indication the law required these members to then forfeit the other rights and privileges vested in or enjoyed as a result of having satisfactorily served in a commissioned or warrant officer status.  

2.  The evidence of record confirms the applicant held and satisfactorily served in both the rank/grade of CSM/E-9 and in the rank/grade of MAJ/O-4.  It also shows he was placed on the Retired List in the highest rank held, which was MAJ.  
3.  The evidence supports the applicant receiving retired pay based on the formula most favorable to him.  Additionally, the law allows him to retain the earned recognition, rights, and privileges due him based on his satisfactory service as a MAJ.  As such, and as a matter of equity, it would be appropriate to retain him on the Retired List in the rank of MAJ, but allow him to receive retired pay at the pay rate for CSM/E-9, to include all back pay that is due as a result.

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 requesting the Defense Finance and Accounting Service (DFAS) to pay the applicant retired pay at the pay grade of E-9 while showing his retired rank as major.  Additionally, DFAS is requested to identify all back pay which may be due as a result of the Board's action. 




      _______ _   _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)                                         AR20150002407



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ABCMR Record of Proceedings (cont)                                         AR20150002407



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