RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-02632 INDEX CODE:	110.02
XXXXXXXXXXXXXXXXX	COUNSEL: NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His retired pay grade be changed from major (O-4) to lieutenant colonel (Lt Col) (O-5). As an alternative, he be afforded the opportunity to return to active duty to fulfill the required military service obligation to receive retired pay as a Lt Col along with full credit for the time since the date of his retirement as served.

APPLICANT CONTENDS THAT:
He voluntarily retired in the grade of major based on erroneous information he received from the Air Force Personnel Center (AFPC) and his local Accounting and Finance Office indicating his retired pay would be calculated using Lt Col base pay. His Date Initially Entered Uniform Service (DIEUS) is 2 October 1979; therefore, his retired pay plan was Final Basic Pay under Title 10, United States Code (USC), Section 1406. The information he received from the Air Force Personnel Center, on more than one occasion, indicated computation for retired pay is NOT affected by the grade in which you are retired; it is only affected by the monthly basic pay received while on active duty. He was specific in his questions to AFPC; however, he received the same wrong information each time.

In support of his appeal, the applicant provides a personal statement and copies of electronic communications between himself and AFPC.

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

STATEMENT OF FACTS:

On 31 March 2008, the applicant was honorably relieved from active duty in the grade of Lt Col and retired effective 1 April 2008 in the grade of major.  He served 25 years, 11 months, and
15 days of active duty.

The	remaining	relevant	facts	are	contained	in	the	Air	Force advisory opinion at Exhibit B.

AIR FORCE EVALUATION:
ARPC/DPSOR recommends denial of the applicant’s request. DPSOR states the applicant received information of a general nature concerning retired pay plans but did not receive information specific to his situation; voluntarily retiring in a lower grade because of insufficient time in grade (TIG) as a Lt Col.  On
29 November 2007, the applicant applied for voluntary retirement through the virtual Military Personnel Flight application process for a retirement effective date of 1 April 2008. He was promoted to the grade of Lt Col effective 1 June 2007. As of his requested retirement date, he had only ten (10) months TIG.

DPSOR indicates that on 24 November 2003, Public Law 108-136 amended Title 10 USC, Section 1370 (a)(2)(A) which allows the Secretary of Defense (SecDef) to delegate authority to the Secretary of the Air Force (SecAF) for 2-year TIG waivers. Waiver of less than 2-years TIG can only be approved by the President in cases involving extreme hardship, or exceptional or unusual circumstances. The authority of the President may not be delegated. The laws that determine a member’s retired pay base are Title 10 USC, Sections 1406 and 1407. The retired pay base known as “High-36” applies to members who have a DIEUS after
7	September 1980. If officers in the High-36 retired pay plan request to retire in a lower grade, their retired pay is based on an average of their base pay for the previous 36 months to their retirement, regardless of their retired grade.

The retired pay base for members who have a DIEUS before
8	September 1980 are under what is known as “final basic pay” plan (Title 10 USC, Section 1406). Under this law, the actual retired grade, not the base pay of a member on the last day of active duty, is what is considered as the retired pay base. Both the law and the Department of Defense Financial Management Regulation (DoDFMR) are clear on this point: “A commissioned officer of the Army, Air Force, or Marine Corps, who voluntarily retires in a grade above major or lieutenant commander, must serve on active duty in that grade for not less than three years. An officer who does not meet the service-in-grade requirement retires in the next lower grade in which member served on active duty satisfactorily for at least six months.”

The applicant did not have 3-years TIG as of his requested retirement date and was not eligible to request a 2-year TIG waiver because he had only ten (10) months in the grade of Lt Col by his requested retirement date. Further, he did not request a Presidential waiver for extreme hardship or exceptional or unusual circumstances.  There is no provision in law that allows

a change in the applicant’s 2 October 1979 DIEUS so that he qualifies for Title 10 USC, Section 1407 (high-36) rather than Title 10 USC, Section  1406 (final basic pay) to possibly accommodate a higher retired base pay.

The DPSOR evaluation, with attachments, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
He respectfully requests that all the facts in his case be thoroughly reviewed. In addition, he’d like to see administrative action taken against either the individuals that provided him the “wrong” information or action taken against the supervision of the contact center for a lack of oversight.

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 a thorough review of the available records, we found no evidence the individual’s records are in error. We note the applicant’s contention that he was given incorrect information in regards to calculating his retirement pay; however, we also note he relied upon offices other than the appropriate Air Force office of primary responsibility, to base his decision. Governing directives confirm the only way the applicant could have received retirement pay in the grade of Lt Col is if he had served in that grade for a period not less than three years; or, if the Secretary of Defense had granted the Secretary of the Air Force the authority to reduce the applicant’s time in grade to two years. The applicant did not meet either of these requirements. In light of these requirements and notwithstanding the applicant’s claim of miscounseling, we do not find it reasonable that he would conclude that he would receive retired pay as a Lt Col after only serving in that grade for ten months. In addition, to grant the applicant’s request would be contrary to the governing Air Force regulations and the law. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Accordingly, the applicant’s request is not favorably considered.

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.

The following members of the Board considered this application in Executive Session on 8 October 2008, under the provisions of AFI 36-2603:

Panel Chair 
Member 
Member

The following documentary evidence for AFBCMR Docket Number BC- 2008-02632 was considered:

Exhibit A.	DD Form 149, dated 5 Jul 08, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Letter, AFPC/DPSOR, dtd 6 Aug 08, w/atchs. Exhibit D.	Letter, SAF/MRBR, dated 28 Aug 08.
Exhibit E.	Applicant’s Rebuttal, dated 5 Sep 08.