RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02624
		INDEX CODE 131.09
	 	COUNSEL:  None

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

He be retired on 1 Jul 94 in the grade of staff sergeant (SSgt), the highest grade held on active duty, rather than as sergeant (Sgt).

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APPLICANT CONTENDS THAT:

He should have been retired in the grade of SSgt under the “Tower Amendment.”  Now that his rank has been restored he is receiving pay based on his retirement back in 1994, which punishes him again.  He should be getting retired pay as a SSgt at today’s pay rate.  If he is to be paid at the pay rate of 10 years ago, then he should receive the back pay for that period.

The applicant’s complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

AFI 36-3203, Service Retirement, stipulates the following:

	7.2.3.   Enlisted members of the Regular or Reserve forces retiring for other than disability retire in the Regular or Reserve grade held on the date of retirement unless entitled to a higher grade under some other provision of law.

	7.4.     Advancing Regular Enlisted Members to a Higher Grade After 30 Years of Service:
	7.4.1.   Advancement on the Retired List.  Regular enlisted members may, when their active service plus service on the retired list total 30 years, be advanced (on the retired list) and receive retired pay in the highest grade held on active duty satisfactorily, as determined by the Secretary of the Air Force (SAF) or designee under Title 10, USC, Section 8964.

	7.6.3.   Preventing a Pay Inversion.  The Tower Amendment, Title 10, USC, Section 1401a(f), effective 7 Oct 75, allows DFAS-CL to compute retired pay on an earlier rate of basic pay if that would be more favorable to the member.  
	7.6.3.1. The member must have been retirement eligible when the earlier rate of basic pay was in effect.
	7.6.3.2. Only the amount of service and the grade held on the last date of the earlier rate may be used in the calculation.

	7.9.     Computing Retired Pay of a Member Involuntarily Reduced in Grade.  Members retire in the grade held on the date of retirement.  However, members eligible to retire on the last day of the month before the date of reduction may compute pay on the basic rate of the higher grade.  Compute retired pay based on the amount of service credited on the last day of the month before the reduction.  Members are eligible if:
	7.9.1.   The reduction was not due to court martial.
	7.9.2.   The member completed the active duty service commitment in the higher grade.

The applicant enlisted in the Regular Air Force on 9 Jun 74. 

On 17 Apr 80, the 33rd Aerospace Rescue & Recovery Squadron (33ARRS) commander at Kadena AB, Japan, imposed Article 15 punishment on the applicant in the form of 45 days of extra duty and a reduction from Sgt to airman first class (A1C), suspended until 15 Oct 80, for failing to go to his appointed place of duty at Clark AFB, Philippines, on 27 Jan 80.  The applicant had presented written matters, but did not appeal.

On 6 Aug 80, the commander imposed Article 15 punishment on the applicant in the form of vacating the suspended reduction to A1C for dereliction of duty in not contacting the 33ARRS Maintenance Control while on standby on 13 Jul 80.  The applicant’s DOR for A1C was 17 Apr 80.  The applicant had made oral and written presentations, but it is not clear whether he appealed.

By AFBCMR action on 29 Dec 82, the applicant’s records were amended to reflect that his suspended reduction from Sgt to A1C was not vacated on 6 Aug 80 but remained in effect until 15 Oct 80, whereupon it was complete.

By AFBCMR Roster action on 17 May 83, the applicant was promoted to the grade of SSgt effective and with a date of rank (DOR) of 1 Feb 81.  

On 18 Jul 84, the Enlisted Performance Report (EPR) closing 18 Jul 84 was referred to the applicant with an overall rating of 8 out of 9.  The rater referred to a confirmed discrimination complaint against the applicant.  The applicant apparently did not submit a rebuttal and the indorsers agreed with the rater.

On 11 Mar 87, the 4950th Organizational Maintenance Squadron (4950OMS) commander at Wright-Patterson AFB (WPAFB), OH, imposed Article 15 punishment on the applicant in the form of forfeiture of $100 in pay per month for two months, 45 days of extra duty, and reduction from SSgt to Sgt, suspended until 6 Sep 87, for placing a replica of the Confederate flag on a rental car being driven by an African American SSgt on 21 Feb 87 around Eglin AFB, FL.  The applicant had made an oral presentation, and his subsequent appeal was denied.

On 10 Apr 87, the EPR closing 4 Apr 87 was referred to the applicant with an overall rating of 7 out of 9.  The rater referred to a “racial incident” while the applicant was on temporary duty (TDY).  Although the applicant submitted a rebuttal, the indorsers agreed with the rater.

On 5 Apr 88, the EPR for the period closing 4 Apr 88, was referred to the applicant with an overall rating of 6 out of 9.  The rater commented on the applicant’s poor performance, work ethics, and relationship skills.  Although the applicant provided a rebuttal, the indorser agreed with the rater, referring to the applicant receiving counselings and letters of reprimand for substandard performance and behavior.

On 16 Nov 89, commander imposed Article 15 punishment on the applicant in the form of reduction from the grade of SSgt to Sgt, with an effective date of 16 Nov 89, for dereliction of duty in failing to properly transfer fuel on 1 Nov 89 at WPAFB.  The applicant made oral and written presentations, and his subsequent appeal was denied.  At this time, the applicant had approximately 15 years, 5 months and 7 days of active service.

[NOTE:  Congress did not authorize The Temporary Early Retirement Authority (TERA) until 23 Oct 92, and implementation after enactment was left up to the service secretaries.  Since the applicant was demoted prior to TERA’s enactment, he could not retire under its provisions with 15-plus years of active service.  The Tower Amendment also does not apply to the applicant because, under its provisions, a member had to have 20 years of Total Active Federal Military Service (TAFMS) as of the date of the demotion.]

Special Order No. AC-0211296, dated 7 Sep 93, indicated the applicant would be relieved from active duty on 30 Jun 94 and retired effective 1 Jul 94 in the grade of Sgt.  The order also advised that, effective 9 Jun 04, the applicant would be advanced on the USAF retired list to the grade of SSgt, the highest grade held on active duty, by reason of completing a total of 30 years active service, plus service on the retired list, on 8 Jun 04, under the authority of Title 10, USC, Sections 8964 and 8992.

On 1 Jul 94, after 20 years and 22 days of active service, the applicant was voluntarily and honorably retired in the grade of Sgt for maximum service for time in grade.

According to HQ AFPC/DPPRRP (Exhibit C), now that the applicant has been advanced to the grade of SSgt on the retired list on 8 Jun 04, his current retired pay will be calculated at 50% (for 20 years of active service) times the final basic pay of a SSgt in 1994, with the additive of Cost of Living Adjustments (COLAs) since that time.  His retired pay will not be calculated using the basic pay tables for Calendar Year 2004 (CY04).

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AIR FORCE EVALUATION:

HQ AFPC/DPPRRP advises that, at the time of the applicant’s demotion on 16 Nov 89, he had insufficient active duty for retirement.  They cite applicable provisions of AFI 36-3203.  Although the applicant believes the Tower Amendment applies to him, he had to have been retirement eligible when he was demoted to have his previous rate of basic pay considered for computation of his retired pay.  He was not eligible for retirement when he was demoted on 16 Nov 89; he did not yet have 20 years of TAFMS.  Therefore, denial is recommended.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asserts that, at the time of his demotion, the Air Force was offering early retirements/outs.  He chose to stay for 20 years and receive all his benefits.  His advancement on the retired list is like a promotion and should be treated as such.  He should be getting paid at the current rank of a SSgt retiring today.  If he is to be paid from 10 years ago, then he should receive pack pay for that.  Had DPPRRP researched they would have seen he was eligible for early retirement at the time.  [See NOTE in Statement of Facts section above.]

A complete copy of applicant’s response is at Exhibit E.

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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.	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 he should be retired in the highest grade held of SSgt, rather than Sgt.  When the applicant was demoted from SSgt to Sgt on 16 Nov 89, he was not eligible for retirement as he had approximately 15 years, 5 months and 7 days of active service at the time.  Congress did not authorize the TERA until 23 Oct 92, and implementation after enactment was left up to the service secretaries.  Since the applicant was demoted prior to TERA’s enactment, he could not retire under its provisions with 15-plus years of active service.  The Tower Amendment also does not apply to the applicant because, under its provisions, a member had to have 20 years of TAFMS as of the date of the demotion.  Further, contrary to his opinion, his advancement on the retired list under the provisions of Title 10, USC, Sections 8964 and 8992, is not a promotion and is not treated as such.  We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has not sustained his burden of having suffered either an error or an injustice.  In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

4.	The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered.

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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 16 and 27 December 2004 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2004-02624 was considered:

   Exhibit A.  DD Form 149, dated 16 Aug 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRRP, dated 13 Sep 04.
   Exhibit D.  Letter, SAF/MRBR, dated 24 Sep 04.
   Exhibit E.  Letter, Applicant, dated 6 Oct 04.