RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01226
INDEX CODE: 112.10
XXXXXXX	COUNSEL:	
 HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
His inactive service be changed to active and his retirement pay be adjusted from 55% to 75%.

APPLICANT CONTENDS THAT:
His active service appears to have been miscalculated. The Defense Office of Hearings and Appeal’s (DOHA) ruling rendered his inactive service eligible which allowed his former spouse to receive direct payments under the Uniformed Services Former Spouses’ Protection Act (USFSPA). However, this same inactive service time was not used to compute his eligibility for retirement. He believes all 33 years of his military service should be used to compute his retired pay at 2.5% per year. He was married to his former spouse 15 years, 8 months and 11 days; all the years except one overlapped periods of military service. Less than 10 of those years could be defined as active service under the statutes. Congress' sentiment was the spouse or former spouse should have no greater interest in the retired or retainer pay of a member than the member has. Thus, if any portion of this inactive service can be found creditable in determining his former spouse’s eligibility to receive a portion of his retired pay under the law, it is not incompatible to conclude he is equally entitled to have it included in determining his retired pay computations.

In support of his request, applicant submits personal statements, copies of his retirement order, his DD Form 214, Certificate of Release or Discharge from Active Duty; a Claims Appeals Board Reconsideration Decision, extracts from Title 10, Armed Forces and the DOD FMR, his point credit  summary, statement of service, memorandums and several other documents in support of his request.

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

STATEMENT OF FACTS:
On 30 June 1971, the applicant entered the Air Force. He was married from 18 November 1972 to 28 July 1988. During his 15- year marriage he served approximately 5 years and 11 months of active duty and 8 years and 9 months of Reserve duty. The divorce settlement awarded his former spouse 37.5% of his retired pay. His ex-spouse petitioned and was granted direct payment by DFAS of his active service retirement pay. DFAS started the former spouse payments effective 27 February 2006 and the applicant was notified of the action.

Effective 30 June 2005, the applicant was released from active duty and retired in the grade of colonel effective 1 July 2005, having accumulated 33 years and 3 days of military service, 20 years and 3 days of which were active service and 22 years, 8 months and 9 days of which are 1405 time (1405 time includes all active service and a certain amount of in-active  reserve service. This date is used as the basis for the multiplier for retired pay).

AIR FORCE EVALUATION:
The BCMR Legal Advisor recommends denial. The BCMR Legal Advisor states the 10-year requirement requires military service creditable for retirement, not active military service. The applicant believes this must be wrong because it would lead to an inconsistency between retirement computation and years to qualify for direct payment. The BCMR Legal Advisor states his reasoning is flawed and his basic argument is if these two types of service are treated the same for the 10-year rule, it follows that they must be treated the same for retirement computation. In fact to say they are treated the same is not accurate, it is more accurate to state either type of these different service counts towards the 10-year requirement. The term service creditable in determining the member’s eligibility for retired pay is simply a broader and thus more liberal criterion than active service. It includes active service and Reserve service. Congressional intent on the 10-year rule is clear and is not related to or classified by retirement computation rules. The fact there is a different computation for Reserve years and active service years does nothing to support his argument. Every Reservist who had active duty service and Reserve duty receives his or her retirement pay as computed in accordance with the federal law on retirement pay computation.

With respect to his quote from the conference report, the BCMR Legal Advisor notes conference reports are not law and where a statute is clear and unambiguous the plain language of a statute controls. It makes the point the spouse cannot have greater transfer or ownership rights in the property (retirement pay)

than the member.	It in no way supports an upward recomputation of retirement pay in these circumstances.

The BCMR Legal Advisor complete evaluation is at Exhibit C.

APPLICANT'S REVIEW OF BCMR LEGAL EVALUATION:
The applicant and his counsel reviewed the advisory opinion and reiterated and elaborated on the original contentions. If the DFAS/DOHA position is to be considered tenable, it is completely irrational to believe interpretations regarding years of creditable service that have the effect of favoring the former spouse cannot also have a reciprocal impact on the member. Years of Reserve service were determined as being creditable in determining the eligibility of the former spouse when it was only days of active service within those qualifying Reserve retirement years that were counted towards determining his eligibility for active-duty retirement pay. When he met the eligibility criterion established under law for a 20-year active service retirement; his Reserve years ceased to be considered as years of creditable service and merely became the basis for further computation to the percentage of his actual retired pay. In further support of his appeal, he provided a personal statement and copies of documents associated with the events cited in his appeal.

The applicant's complete response, with attachments, is at Exhibit D.

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 an error or injustice. After thoroughly reviewing the evidence of record and the applicant’s complete submission, we find no evidence which would persuade us that his inactive service should be converted to active service in order to adjust his retirement pay. Based on the BCMR Legal Advisor's review, it appears the applicant's retirement credit computation is correct and in compliance with the controlling statute. While the applicant contends different computations were used in determining direct payments to his spouse and his retirement pay, he has not provided any evidence showing he was treated differently from others similarly situated. In our view, the applicant's contentions have been adequately addressed
1.	
by the BCMR Legal Advisor and we do not find the applicant has sustained his burden for providing a showing of error or injustice. Accordingly, we adopt the rationale expressed as basis for our conclusion that the applicant has failed to sustain his burden of proof of the existence of either an error or injustice warranting corrective action.

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 issues involved. Therefore, the request for a hearing is not favorably considered.

RECOMMENDATION OF THE BOARD:
The applicant be notified that the evidence presented did not demonstrate the existence of an 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 the application.

The following members of the Board considered Docket Number BC- 2008-01226 in Executive Session on 21 July 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member
The following documentary evidence was considered:
Exhibit A.	DD Form 149, dated 30 March 2008, w/atchs. Exhibit B.	Applicant's Master Personnel Records.
Exhibit C.	Letter, BCMR Legal Advisor, dated 10 June 2009. Exhibit D.	Letter, SAF/MRBC, dated 12 June 2009.
Exhibit E.	Letter, Applicant, dated 7 July 2009, w/atchs.