RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-01118
INDEX CODE:  129.04
								COUNSEL: NONE
								HEARING DESIRED:  NO
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APPLICANT REQUESTS THAT: 

His retirement pay be calculated based on his highest grade held (master sergeant (E-7)). 
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APPLICANT CONTENDS THAT:

He held the grade of E-7 for over seven years.  His retirement papers were accepted and a date set to retire prior to 11 September 2001 and the Stop-Loss implementation.  He was reduced in rank during the stop-loss period.  He believes he was judged unfairly and that his commander seemed intent on making his retirement difficult.  

Applicant provides no supporting documentation.  The applicant’s submission is at Exhibit A.  

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STATEMENT OF FACTS:

On 30 November 2002, the applicant was relieved from active duty and was retired in the grade of technical sergeant (E-6) effective 1 December 2002.  Applicant was credited with 22 years, 8 months and 19 days of total active duty service for basic pay and 22 years, 8 months and 7 days active service for retirement.  Prior to the events under review, he had been progressively promoted to the grade of master sergeant (E-7), with a date of rank of 1 September 1994.

On 26 September 2001, the applicant submitted an application for retirement, with an effective retirement date of 1 February 2002.  On 13 March 2002, the applicant was reduced in grade from master sergeant to technical sergeant as a result of the imposition of nonjudicial punishment on him under Article 15, Uniform Code of Military Justice (UCMJ) based on his commander’s determination that he had stolen merchandise of a value of $83.60 from an AFEES Power Zone.

On 12 July 2002, the SAF/PC made the determination that the applicant did serve satisfactorily in the higher grade of MSgt within the meaning of Section 8964, Title 10, United States Code.  The applicant will be advanced to the grade of MSgt effective 24 March 2010.  

The remaining relevant facts pertaining to his nonjudicial punishment, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed this application and recommends denial.  JAJM states that the applicant was accused of theft from the AAFES Power Zone in violation of Article 121, UCMJ.  On 12 March 2002, after consulting with counsel, the applicant waived his right to demand trail by court-martial, accepted non-judicial punishment and submitted a written statement.  He also requested a personal appearance with the commander.  On 13 March 2002, the commander determined that the applicant had committed the offense alleged and imposed punishment consisting of a reduction to E-6 and a reprimand.  The applicant appealed; the appeal was denied.  JAJM states that the applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.  The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPPWB reviewed this application and recommends denial.  DPPPWB states that the applicant’s punishment consisted of a reduction from the grade of MSgt (E-7) to TSgt (E-6) with a new date of rank of 13 March 2002.  He retired on 30 November 2002 in the grade of TSgt.  DPPPWB states that the demotion action taken against the applicant was procedurally correct and there is no evidence there were any irregularities or that the case was mishandled.    AFPC/DPPPWB evaluation is at Exhibit D.

AFPC/DPPRRP reviewed this application and recommends denial.  DPPRRP states 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 held on the date of his retirement.”  The applicant’s grade held on the last day of active duty was TSgt and was correctly retired in the grade of TSgt.  DPPRRP states that Public Law 103-337, Section 1401a(f), Title 10 United States Code (which discusses the pay inversion/Tower amendment) now reads as follows:  “In computing the amount of retired pay to which such a member or former member would have been entitled on that earlier date, the computation shall be based on his grade, length of service, and the rate of basic pay applicable to him at that time, except that such computation may not be based on a rate of basic pay for a grade higher than the grade in which the member is retired.”  Therefore, since the applicant retired in the grade of technical sergeant, his retired pay will be based on the pay rates in effect for technical sergeant.  DPPRRP states that all criteria of the pertinent laws have been met in this regard and no error or injustices occurred in the applicant’s retirement, retired grade, grade determination or advancement action.  AFPC/DPPRRP evaluation, with attachments, is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 29 August 2003 for review and response (Exhibit F).  As of this date, this office has received no response.

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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.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that his retirement pay should be calculated at the grade of master sergeant.  In this regard, we agree with the opinion and recommendation of the Air Force office of primary responsibility that in accordance with Section 8964, Title 10, USC, the applicant was correctly retired in the grade of technical sergeant, which was the grade he held on the date of his retirement and that the applicant will be advanced to the grade of master sergeant effective the date of completion of all required service.  In the absence of evidence which successfully refutes the Air Force assessment of this case or showing that the actions taken to effect the applicant’s reduction in grade were erroneous or unjust, we find no compelling basis to recommend granting 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 this application in Executive Session on 23 October 2003, under the provisions of AFI 36‑2603:

	Panel Chair
	Member
	Member

The following documentary evidence for AFBCMR Docket Number BC-2003-01118 was considered:

	Exhibit A.  DD Form 149, dated 14 Mar 03.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 7 Jul 03.
	Exhibit D.  Letter, AFPC/DPPPWB, dated 25 Jul 03.
	Exhibit E.  Letter, AFCP/DPPRRP, dated 21 Aug 03 w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 29 Aug 03.

						
									Panel Chair