RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03507
		INDEX CODE:  

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His retired pay be based on the grade of lieutenant colonel.

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APPLICANT CONTENDS THAT:

He was considering whether to retire or to pull his papers and stay in the Air Force for the 13 additional months needed to obtain 3 year’s time as a lieutenant colonel.  While trying to decide, he was counseled by the NCOIC, Retirements and Separations that based upon her investigation of the applicable regulations, his retirement would be based upon his grade on his last day of active duty.  Because there were confusing footnotes concerning this in the regulations he had been referred to, he trusted that as the NCOIC, she knew what she was talking about and in good faith, went ahead and retired after 24 years of active duty.  However, he has now received his retired pay and it is based on major pay and not lieutenant colonel pay as the person in a position of authority over the section whose mission is to ensure members are appropriately retired told him.

In support of the appeal, applicant submits a letter from the NCOIC in the Retirement and Separation office.  Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered active duty as a commissioned officer in the grade of second lieutenant on 10 January 1984.  He was progressively promoted to the grade of lieutenant colonel, effective and with a date of rank of 1 September 2000.

On 11 February 2002, applicant submitted an application for voluntary retirement, to retire in the grade of major (04), which was approved to be effective 1 July 2002.  However, his approved retirement was suspended under the provisions of Stop Loss.

On 30 April 2002, applicant submitted a Stop Loss waiver request, which was approved on 17 May 2002.  Upon approval of his Stop Loss waiver, applicant submitted an application for voluntary retirement requesting an effective date of retirement of 1 August 2002.  His application for retirement to be effective 1 August 2002, was approved by Special Order AC-016967.  On 31 July 2002, the applicant was relieved from active duty and, effective 1 August 2002, retired in the grade of major.  He was credited with 24 years, 1 month and 16 days of active duty service.

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AIR FORCE EVALUATION:

AFPC/DPPRRP states that Section 1370, Title 10, United States Code, paragraph (a)(2)(A) states:  “In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years in the case of retirements effective during the period beginning on October 1, 1990, and ending on December 31, 2001.”  Applicant’s time-in-grade requirement would have been completed on 31 August 2003.

Section 1370, paragraph (a)(2)(B), also provides that the President may waive paragraph (a)(2)(A) in individual cases involving extreme hardship or exceptional or unusual circumstances.  The authority of the President under the preceding sentence may not be delegated.  Applicant voluntarily applied for retirement and was fully aware that he was going to be retired in the grade of major.  No extreme hardship or exceptional or unusual circumstances were involved in this case.

Section 1370, paragraph (b) states:  “An officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified in paragraph (a) shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned for not less than six months.”  Applicant had served on active duty in the grade of major for over 5 years.

In reference to the applicant indicating that there were confusing footnotes in the regulation concerning his retired pay being based on the grade he held on his last day of active duty, AFI 36-3203. Service Retirements, Table 2.2, Rule 4 states, “If member holds the grade of Lt Col, Col, Brigadier General or Major General and has not served on active duty at least 3 years in that grade as of the requested retirement date, then the restriction is waiverable by the President for extreme hardship or in exceptional or unusual circumstances.”  Rule 4 of Table 2.2, also refers to note 4, which specifically states, “Officers who cannot justify waiver of the time-in-grade (TIG) requirement, or whose waiver request is disapproved, may ask to retire in the next lower grade held satisfactorily on active duty for at least six months.  Show such requests in the remarks section of AF Form 1160 over the applicant’s signature and include documentation to substantiate waiver of any ADSC.”  Applicant’s retirement application did not include a request to waive the three years time-in-grade requirement to retire in the grade of Lt Col, but it did include the statement in the remarks section, “Request to retire as 04.”  Applicant held the grade of Lt Col on his last day of active duty, but he voluntarily submitted an application for retirement indicating he wanted to retire in the lower grade of major, therefore, his retired pay is based on the grade of major.

Applicant’s Date of Initial Entry into Uniformed Service (DIEUS) is 11 December 1977 which established his retired pay based to be computed under Section 1406, Title 10, United States Code, paragraph (e)(1) that states:  “In the case of a member whose retired pay is computed under section 8991 of this title or who is entitled to retired pay computed under section 8992 of this title, the retired pay base is determined in accordance with the following table.  For a member entitled to retired pay under section 8911 the retired pay base is:  Monthly basic pay of the member’s retired grade.”  Applicant retired under section 8911 and elected to retire in the grade of major, therefore, his retired pay was computed in the grade of major, in accordance with Section 1406.  Therefore, they recommend denial of applicant’s request.  They state the following:

	a.  The applicant was correctly retired in the grade of major.  Since he did not meet the time-in-grade requirements of law to retire in the highest grade held on active duty, he elected to retire in the next lower grade in which he served on active duty satisfactorily for at least six months.  This was a voluntary action on the applicant’s part and should not be changed.

	b.  They can neither confirm nor deny that miscounseling actually occurred, but miscounseling does not negate the fact that Section 1370, Title 10, United States Code is specific in its intent that in order to be credited with satisfactory service in an officer grade above major or lieutenant commander, a person must have served satisfactorily in that grade for three years.  It would be inherently unfair to allow the applicant to received retired pay in his active duty grade (Lt Col) and receive no penalty for not completing the three year time-in-grade requirement established by law, when they cannot grant the same relief to other officers who also voluntarily elected to retire in a lower grade.  No irregularities occurred in the processing of the retirement request and all provisions of the law have been correctly met.

A complete copy of the evaluation, with attachments, is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and states, based on the information he received he acted in good faith.  Therefore, his retirement pay should be based on his base pay on his last day of active duty as indicated to him by TSgt 	, or he should be reinstated onto active duty in the Air Force at his old duty location until he obtains the time in grade it would take for him to be eligible to retire as lieutenant colonel.  It would make sense for him to be temporarily assigned to HQ AMC/SG, Directorate of Healthcare Optimization, as that is where he was slated to be assigned as an IMA reservist upon approval of his reserve application.  Applicant's response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, HQ USAF/JAG reviewed this application and stated that after counseling, the applicant mistakenly understood that his retirement pay would be based on his monthly basic pay on the day before he retired, rather than monthly basic pay of his retired grade.  It was based on this erroneous advice that he elected to retire as planned on 1 August 2002.  JAG noted the applicant’s reference to 10 USC 1370, as amended by the National Defense Authorization Act for Fiscal Year 2003, which permits the Secretary of Defense (SecDef) to authorize the Secretaries of the military departments to reduce the three-year in grade requirement to two years, effective during the period beginning 1 October 1990 and ending 31 December 2001.  JAG notes that this authority expired after the applicant’s separation but that it was renewed by law for the period 1 October 2002 and ending on 31 December 2003.  Additionally, and more importantly, HQ USAF/DP advised JAG that the SecDef has not delegated the above-cited authority to reduce the three-year service in grade requirement to the service secretaries.  Thus, should the Board desire to recommend retirement as a lieutenant colonel with credit for two years of time in grade, the Secretary of the Air Force would be without authority to execute it.

Should the Board determine the applicant was miscounseled, JAG would have no objection to recommending the applicant be recalled to active duty to serve an additional 13 months in order to retire as a lieutenant colonel.  A complete copy of this evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reiterated his initial contentions concerning his retired grade and offered to accept reinstatement onto active duty (See Exhibit G).

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of injustice.  Although no evidence has been provided that would lead us to believe the applicant’s retired pay has been calculated in a manner contrary to the governing regulations and the law, we believe some form of relief is appropriate in this case based on findings of injustice.  We are satisfied by the evidence provided that the applicant was miscounseled concerning the calculation of his retired pay based on his circumstances at the time and that he relied on this miscounseling to his detriment.  We are not inclined to recommend correcting the records to show the applicant received active duty credit for a 13-month period when he actually did not serve.  Rather, we believe he would be afforded proper and fitting relief by offering him the opportunity to return to active duty for the required period of time for him to receive retired pay based on his grade of lieutenant colonel.  We have noted the applicant’s request for a particular assignment.  However, in cases of this nature, we believe that the needs of the service, as well as those of the individual, must be considered.  Therefore, we believe his record should be corrected to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that, provided he accepts the offer of recall to active duty within 60 days of the date such an offer is made, he be voluntarily ordered to extended active duty in the grade of lieutenant colonel for a period of 13 months.

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The following members of the Board considered this application in Executive Session on 20 October 2003 under the provisions of AFI 36‑2603:

Vice Chair
Member
Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 30 October 2002, with
                 attachments.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRRP, dated 17 December 2002,
                 with attachments.
     Exhibit D.  Letter, SAF/MRBR, dated 3 January 2003.
	Exhibit E.  Applicant’s Letter, dated 8 January 2003.
	Exhibit F.  Letter, HQ USAF/JAG, dated 25 March 2003.
	Exhibit G.  Applicant’s Letter, dated 24 March 2003, with
                 Attachments.

                                   

AFBCMR BC-2002-03507

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to, be corrected to show that he was not relieved from active duty on 31 July 2002 and retired in the grade of major, effective 1 August 2002, but was continued on active duty for the Convenience of the Government until 31 August 2003, on which date, he was honorably relieved from active duty and retired in the grade of lieutenant colonel, effective 1 September 2003.

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                                       CORRECTION OF MILITARY RECORDS

SUBJECT:  AFBCMR Case of, Docket No. BC-2002-03507

	I have carefully reviewed all the circumstances of this case and do not agree with the recommendation of the panel that the applicant would be provided proper and fitting relief by offering him the opportunity to return to active duty to complete his active duty service commitment for retirement in the grade of lieutenant colonel.  It is my opinion that the interests of both the service and the individual would best be served by correcting his record to show he continued on active duty until he would have completed the three-year commitment and allow him to retire in the higher grade.

	Although I agree with the panel that the applicant should be afforded relief because of the miscounseling he received upon which he relied to his detriment, in view of the specific circumstances of his case, offering the applicant the opportunity to return to active duty at the present time would cause an undue burden to the service and possibly to the applicant as well.  The applicant has expressed no interest in returning to active duty for a period longer than that required to accrue three years of service in the grade of lieutenant colonel.  I am aware that returning a member to active duty under these circumstances for a period of less than two is not considered a benefit to the Air Force from a cost effective standpoint.  In view of this and in consideration of the disruption to the applicant’s life that would occur by requiring him to return to active duty to rectify an injustice caused by an Air Force error, his records should be corrected to show he was not discharged but that he completed the service required to retire in the grade of lieutenant colonel.