RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03970
		INDEX CODE:  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that on 1 Feb 84, he retired in the grade of staff sergeant, which was the highest grade he held; and, that he receive all back pay and allowances from 1 Feb 84 to 27 Dec 93.

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APPLICANT CONTENDS THAT:

Based on the rule that was in effect when he retired on 1 Feb 84, he should have been retired in the grade of staff sergeant, which was the highest grade he held.

In support of his appeal, the applicant provided extracts from his military personnel records, to include copies of his separation documents and retirement order.

Applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant initially enlisted in the Regular Air Force on 20 May 63.  On 15 Aug 75, he was honorably discharged from the Air Force with 12 years, 2 months, and 26 days of active service.

Applicant enlisted in the ----- Air National Guard (ANG) on 23 Sep 75 and was honorably discharged from the ANG on 22 Mar 76.

On 24 Mar 76, the applicant again enlisted in the Regular Air Force. 

On 24 Sep 79, he received nonjudicial punishment under Article 15 for failure to obtain proper insurance on his privately owned vehicle (POV), resulting in forfeitures of $150.00.

On 28 Jul 80, he received a letter of reprimand (LOR) for dereliction in the performance of his duty.

On 11 Aug 80, his name was placed on the control roster for repeated financial irresponsibility.  His name was again placed on the control roster on 12 Jan 81 for financial irresponsibility.

On 13 Oct 81, he received an LOR for financial irresponsibility.

On 2 Nov 81, he received an LOR for issuing a check of $60.00 with insufficient funds in his account.

On 21 Oct 82, he received an LOR for indebtedness to the noncommissioned officer (NCO) Open Mess.

On 22 Dec 82, he received nonjudicial punishment under Article 15 for financial irresponsibility and was reduced in grade from staff sergeant to sergeant.

On 19 Aug 83, he received nonjudicial punishment under Article 15 for wrongfully and unlawfully making and uttering a check without sufficient funds and was reduced in grade from sergeant to airman first class.

On 31 Jan 84, the applicant was relieved from active duty and retired, effective 1 Feb 84, in the grade of airman first class, with 20 years, 1 month, and 3 days of active duty service.

Effective 28 Dec 93, the applicant was advanced to the grade of staff sergeant on the Air Force Retired List by reason of completing 30 years service on 27 Dec 93.

The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force.  

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AIR FORCE EVALUATION:

AFPC/DPPRRP recommended denial noting that Section 8961, Title 10, United States Code, states:  “Unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Air Force...who retires other than for physical disability retires in the Regular or Reserve grade that he holds on the date of his retirement.”  In the applicant’s case, the grade was airman first class.  

AFPC/DPPRRP indicated that, based on Comptroller General Decision, B-187683, dated 23 Jun 77 (Tower Amendment), a member must have completed over twenty (20) years of active service prior to being reduced in order to retire in a higher grade.  The applicant’s first retirement eligibility was in Dec 83 and he was reduced from the grade of sergeant to airman first class effective Aug 83, which was prior to being retirement eligible.  Therefore, the Tower Amendment did not apply to the applicant.  He was retired correctly in the grade of A1C.

AFPC/DPPRRP noted that Section 8964, Title 10, United States Code, allows the advancement of enlisted members (when their active service plus service on the retired list totals 30 years) on the retired list to the highest grade in which they served on active duty satisfactorily as determined by the Secretary of the Air Force.  The Secretary of the Air Force has delegated this authority to the Secretary of the Air Force Personnel Council.  On 20 Jan 84, the Secretary of the Air Force Personnel Council made the determination that the applicant did serve satisfactorily in a higher grade within the meaning of Section 8964 and directed applicant’s advancement to the grade of staff sergeant on the retired list effective 28 Dec 93.  According to the Defense Finance Accounting Service (DFAS) pay record, applicant was advanced to the grade of staff sergeant and is currently receiving retired pay in the grade of staff sergeant.

AFPC/DPPRRP indicated that, in accordance with Section 8961, Title 10, United States Code, and Comptroller General Decision B‑187683, the applicant was correctly retired in the grade of airman first class, which was the grade he held on the effective date of his retirement.  In their view, the Tower Amendment was not applicable to the applicant because he was reduced in grade prior to completion of 20 years of active service.

A complete copy of the AFPC/DPPRRP evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 28 Feb 03 for review and response.  As of this date, no response has been received by this office (Exhibit D).

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action regarding the applicant’s request that his records be corrected to reflect that he retired on 1 Feb 84 in the grade of staff sergeant, which was the highest grade he held; and, that he receive all back pay and allowances from 1 Feb 84 to 27 Dec 93.  It appears that the basis for the applicant's request is his belief that the Comptroller General Decision B-187683 (Tower Amendment) is applicable to his situation.  However, we note that the Tower Amendment pertains to retirement pay recalculation, and not to a change in grade.  In order for the applicant to have been eligible for retirement pay recalculation under the Tower Amendment, he would have needed 20 years of active service at the time he held the higher grade.  Since the applicant was reduced in grade prior to completion of 20 years of active service, the Tower Amendment is not applicable to his situation.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we find no compelling basis to grant the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2002-03970 in Executive Session on 13 May 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Jan 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 4 Feb 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Feb 03.