RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03894 INDEX NUMBER: 128.00; 133.03 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her retired military pay be corrected to the High-36 plan in the grade of senior master sergeant (SMSgt/E-8), rather than a master sergeant (MSgt/E-7). _________________________________________________________________ APPLICANT CONTENDS THAT: She was told that if she did not get her E-8 back before she retired, her retired pay would be computed using the E-8 pay chart. She filed a congressional complaint and was told that her pay was correct. In support of her application, the applicant provides an article from Air Reserve Personnel Center, copies of Air Guard Reserve (AGR) Retirement Pay computations, a letter from JFHQ/WY/CCC and a copy of her congressional complaint. Applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant's Date Initially Entered Uniformed Service (DIEUS) is 7 October 1980 and she was progressively promoted to the rank of senior master sergeant, with an effective date of rank of 21 December 1994. Prior to her retirement, she held the grade of MSgt from 7 July 1998, until 31 December 2007. On 7 July 1998, the applicant took a voluntary demotion from SMSgt to MSgt to fill an MSgt position at the Accounting and Finance section of her unit. On 26 January 2006, the applicant received an AGR retirement computation using SMSgt as the highest grade held for retirement purposes under the provisions of Title 10, United States Code (USC), Section 8914. On 5 February 2007, the Special Assistant to the Director, Secretary of the Air Force Personnel Council approved the request for the applicant to be retired in the grade of SMSgt, effective 1 January 2007, under Title 10, USC, Section 8914. On 6 February 2007, the applicant received retirement orders retiring her in the grade of MSgt effective 1 January 2007, after completing 20 years, 10 months, and 14 days of active service for retirement from active duty under Title 10, USC, Section 8914. On 12 March 2007, her retirement orders were amended to change her retirement grade from MSgt to SMSgt. On 25 November 2008, the Defense Finance and Accounting Service (DFAS) notified the applicant that her retired pay would be corrected using the highest 36-months of pay and not the highest rank held. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR defers to the Defense Finance and Accounting Service, Cleveland (DFAS-CL) and states that Title 10, (USC), Section 1407, outlines the retired pay base for members who first became members after 7 Sep 80 for the high-three retirement pay plan. The retired pay estimate provided to the applicant by the Air Reserve Personnel Center (ARPC) and the National Guard Bureau on 12 March 2001 and 25 January 2006 are in error because they both assume that Defense Finance and Accounting Service, Cleveland (DFAS-CL), would use what a SMSgt would have earned if the applicant had been a SMSgt for the months prior to her retirement effective date. This assumption is incorrect in the case of a member who makes more in basic pay in a lower grade than they previously did in a higher grade. DFAS-CL cannot vouch for the origin of the two erroneous "AGR Retirement Pay" estimates and both are based upon the assumption the applicant would have served in the grade of SMSgt from 1 January 2004 to 31 December 2006, which she did not. The applicant was a SMSgt prior to 7 July 1998 and her pay date is 7 October 1980. According to the 1998 pay charts, a SMSgt who has over 16 years longevity receives $2589.60 per month in basic pay. According to the 2006 pay chart, an MSgt who has over 26 years longevity receives $4113.60 per month in basic pay. Consequently, just looking at one month's basic pay as a SMSgt in 1998 versus one month's basic pay as a MSgt 8 years later, DPSOR can see the High-36 average would be substantially higher when the applicant was a MSgt from 1 January 2004 to 31 December 2006 than the High-36 average when she was a SMSgt before her voluntary demotion on 7 July 1998. The complete AFPC/DPSOR evaluation is at Exhibit B. DFAS recommends denial and states the applicant entered the Armed Forces after 8 September 1980 and was subjected to the High-36 month average for use in the computation of her retired pay. They are required to utilize the highest 36 months of basic pay received, not the basic pay of the highest grade held. The basic pay of a MSgt for the years 2004, 2005 and 2006 exceeds the basic pay of a SMSgt in 1998. The retired pay was corrected in November 2008 to reflect the high average for a MSgt. The complete DFAS evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant states she was told that her pay would be calculated at the highest 36 months of E-8 pay at retirement. She was later informed after she retired that she would only receive MSgt retired pay. She would not have moved into the Budget position had she known she was going to receive the lower retired pay. By her moving into the Budget position, other members of the finance office were able to get promoted. Applicant's complete response, with attachments, is at Exhibit F. _________________________________________________________________ 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 evidence of record and the applicant’s submission, we are not persuaded that her retired pay should be adjusted to the rate of her highest grade held while on active duty. Her contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Defense Finance and Accounting Service (DFAS). In this regard, we note that Public Law 96-342, enacted on 8 September 1980, changed the base amount used in the computation of military retired pay for all members who entered the service on or after 8 September 1980, to the average of the highest three years of active duty base pay received. As such, her retired pay was appropriately established based on the highest 36 months of basic pay she received, i.e., MSgt basic pay from 2004 to 2006, regardless of her retired grade, not the basic pay of the highest grade she held, i.e, SMSgt. We also note the requested relief would provide her substantially less retired pay than she is currently receiving. In view of the fact the applicant has not presented persuasive evidence that her retired pay has not been accurately computed in accordance with the governing directives and Public Law, we find no compelling basis upon which to recommend granting the requested relief. _________________________________________________________________ THE BOARD RECOMMENDS: 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 AFBCMR Docket Number BC-2008-03894 in Executive Session on 14 May 2009, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2008-03894 was considered: Exhibit A. DD Form 149, dated 20 Sep 2008, w/atchs. Exhibit B. Letter, AFPC/DPSOR, dated 18 Nov 08, w/atchs. Exhibit C. Letter, DFAS-RPB-TQAL/CL, dated 29 Dec 08. Exhibit D. Letter, SAF/MRBR, dated 16 Jan 09. Exhibit E. Applicant's Response, dated 6 Feb 09, w/atchs. Panel Chair