RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04444 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He be advanced to the grade of major. ________________________________________________________________ APPLICANT CONTENDS THAT: He was promoted to major in December 2004, just 30 days before his retirement date. As he understands, upon reaching 30 years of Total Federal Military Service, he is eligible to apply for an advancement order to update his records to reflect his promotion to major. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant retired from the Air Force in the grade of captain on 1 January 2005. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. On 9 July 2004, the applicant was approved for retirement with an effective date of 1 January 2005. He was promoted to “captain” on 1 December 2004. Title 10 USC 1370(a)(1) outlines time-in-grade (TIG) requirements for establishing a members retired grade. It states unless entitled to a higher retired grade under some other provision of law, a commissioned officer of the Army, Navy, Air Force or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title “shall, except as provided in paragraph 2, be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.” Title 10 USC 1370(b) speaks to the requirement for members to be retired in a lower grade if the TIG requirement is not met: Retirement in the next lower grade - An officer whose length of service in the highest grade held while on active duty does not meet the service in grade requirements specified shall be retired in the next lowered grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months. The applicant had one month time-in-grade at the time of his retirement. He was retired under 10 USC Chapter 867, Retirement for Length of Service. As such, he did not meet the TIG requirements for retirement in the highest held grade. He was correctly retired in the grade of captain. Title 10 USC 8964, Higher grade after 30 years of service; warrant officers and enlisted members, allows members to be advanced to the highest grade satisfactorily held on active duty when their active duty time plus their time on the retired list equals 30 years. This section applies to warrant officers of the Air Force, enlisted members of the Regular Air Force and Reserve enlisted members of the Air Force who, at the time of retirement, were serving on active duty or in the case of the Air National Guard, on full-time duty. Since the applicant was a commissioned officer at the time of retirement, this law is not applicable. There is no legal basis for grade advancement under 10 USC 8964. The complete DPSOR evaluation is at Exhibit C. DFAS recommends denial. In accordance with Title 10 USC 1370(a)(1), a commissioned officer, other than a commissioned warrant officer, of the Army, Navy, Air Force or Marine Corps who retires under any provisions of law other than Chapter 61 or Chapter 1223 of this title “shall be retired in the highest grade in which served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.” The applicant was promoted to major 30 days prior to his retirement; therefore, he was not eligible to retire at the rank of major. The complete DFAS evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 6 April 2013 for review and comment within 30 days. As of this date, this office has received no response (Exhibit E). ________________________________________________________________ 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 thoroughly reviewing the evidence of record and the applicant’s complete submission, we are not persuaded that he is entitled to the relief he seeks. His contentions are duly noted; however, he has not provided persuasive evidence to override the rationale provided by the Air Force office of primary responsibility (OPR). Therefore, we agree with the opinions and recommendations of the OPRs and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: 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 this application. ________________________________________________________________ The following members of the Board considered BC-2012-04444 in Executive Session on 29 May 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-04444 was considered: Exhibit A. DD Form 149, dated 18 Sep 12, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Letter, ARPC/DPSOR, dated 26 Mar 13. Exhibit D. Letter, DFAS, dated 4 Apr 13. Exhibit E. Letter, SAF/MRBR, dated 6 Apr 13.