RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02212 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect his retired pay was calculated based on the hi-three average. ________________________________________________________________ APPLICANT CONTENDS THAT: The Defense Finance and Accounting Service (DFAS) calculated his retired pay incorrectly based on the average of his high 36 months of pay for active duty. He received a Reserve retirement and his retired pay should have been calculated under Title 10 USC, §12731. Service members who retired under §12731 were exempt under §1407(c)(1). The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 24 Jun 83, the applicant commenced his enlistment in the Air Force Reserve. On 18 Dec 03, the applicant was notified of his eligibility to receive retired pay upon reaching age 60 (17 Mar 13). On 30 Sep 05, the applicant was released from active duty and transferred to the Retired Reserve List to await retired pay at age 60 under the provisions of Title 10 USC §12731. On 27 Dec 11, the applicant received notification indicating that according to the 2011 pay scale his gross monthly retired pay would be $1,842.23 On 29 Feb 12, the applicant received notification indicating that according to the 2012 pay scale his gross monthly retired pay would be $1,872.30. On 3 May 13 and 29 Jul 13, the applicant received notification indicating that according to the 2013 pay scale his gross monthly retired pay would be $1,904.03. The applicant retired on 7 Mar 13 and was credited with 22 years, 3 months, and 6 days of satisfactory reserve service for retired pay. On 10 Jan 14 and 15 Feb 14, the applicant received notification indicating that according to the 2014 pay scale his gross monthly retired pay would be $1,923.10. Title 10 USC §1407(c)(1), indicates retired pay is calculated based on the 36 month average for individuals who entered military service after 7 Sep 80; however, individuals who retired under §12731 are exempt from retired pay being calculated based on the high 36 month average. Under the provisions of Title 10 USC §1407(d)(1)(A)(B), former service members who are entitled to retired pay under §12731 of this title will be entitled to an amount equal to the total monthly amount of basic pay to which the former member was entitled during the their high 36 months, divided by 36. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibit C and F. ________________________________________________________________ AIR FORCE EVALUATION: DFAS-JBJE/CL recommends denial indicating there is no evidence of an error or an injustice. The applicant was placed on the military retired rolls on 17 Mar 13, when he turned 60. His RCSBP election was considered invalid since his election form was signed in Jan 04 and not prior to the 90 day suspense as indicated on his 20 year letter. Therefore, the RCSBP was established with automatic spouse and child coverage upon his retirement. As for his request related to his retired pay, a review of the applicant’s records reveal his retired pay calculation is correct. His retired pay was calculated based on the hi-three average. A complete copy of the DFAS-JBJE/CL evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He was placed in the retired reserve with an effective date of 30 Sep 05, not 17 Mar 13. He retired under the provisions of Title 10, USC, §12731. His retired pay should not have been calculated using the hi-three average because those individuals who retired under 10 USC 12731 are exempt from retired pay being calculated based on the hi-three average. According to documents he received from ARPC his gross monthly retired pay should be $1,904.03 and not $1813.00. The applicant’s complete responses, with attachments, are at Exhibit E. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: DFAS-JBJE/CL recommends denial of the applicant’s request regarding the calculation of his retired pay indicating there is no evidence of an error or injustice. The letters the applicant received from AFPC/DPPTR were intended to provide the applicant an approximate gross monthly pay based on the current pay scale. This estimate was based on using the current pay scale not the total amount of monthly basic pay divided by 36 months. The applicant was [later] provided the correct computation for his retired pay at the time of retirement. Since the applicant entered the service after 7 Sep 80, his retired pay was computed using the high three average of the member’s amount of monthly basic pay that he was entitled during his high 36 months divided by 36. A complete copy of the DFAS-JBJE/CL evaluation, with attachments, is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: His retired pay should not have been calculated under the hi- three average used by DFAS because he was separated on 25 Sep 05 before the law became effective for using the hi-three average. Furthermore, his medical records establish that he should have received a disability retirement in Sep 05 instead of being transferred to the Retired Reserve to await retired pay in Mar 13. The applicant’s complete responses, with attachments, are at Exhibit H. ________________________________________________________________ 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. We took notice of the applicant’s complete submission, to include his rebuttals, in judging the merits of the case; however, we do not find the applicant’s arguments or the documentation presented sufficient to conclude that his retired pay was calculated incorrectly. While the applicant makes a variety of legal arguments indicating that his retired pay was computed incorrectly and provides a variety of letters he received indicating that his retired pay would be higher, we are not convinced that these letters, which represent estimates of his retired pay in advance of his retirement, support granting the relief he seeks. In this respect, we note these type estimates are generally provided to military members similarly situated and that members who receive these estimates are duly warned that they are estimates and do not constitute a determinative commitment that such a member will receive the level of pay estimated. Additionally, we note the applicant’s argument that his retirement pay should have been exempt from the high 36 average due to his 100% service connected disability. However, we find the evidence submitted is insufficient to support granting relief on that basis. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4. We note the applicant’s argument in his latest rebuttal that he should have been retired for physical disability in Sep 05; however, as this constitutes a new request separate and aside from the matter under review, in order to have this matter considered, he must submit a new DD Form 149 bearing his signature, accompanied by evidence in support of his request for a disability retirement for consideration by the AFBCMR. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-02212 in Executive Session on 10 Jun 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-02212 was considered: Exhibit A. DD Form 149, dated 4 May 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, DFAS-JBJE/CL, dated 28 May 13, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 21 Jun 13. Exhibit E. Letter, Applicant, dated 28 Jun 13, w/atchs. Exhibit F. Letter, DFAS-JBJE/CL, dated 17 Apr 14, w/atchs. Exhibit G. Letter, SAF/MRBR, dated 9 May 14. Exhibit H. Letters, Applicant, dated 16 May 14 and 18 Aug 14 w/atchs.