RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00983

xxxxxxxxxxxxx	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His retired pay be corrected to equal “Final Basic Pay” under “Final Pay Retirement.”

APPLICANT’S CONTENTIONS

According to the “militarypay.defense.gov/Pay/Retirement” website, his retired base pay should be determined by his Date of Initial Entry to Military Service (DIEMS) of 23 June 1980, the date he entered the Air Force Academy, not the date he graduated from the academy.  His DIEMS date meets the criteria of “Entry before Sept. 8, 1980,” therefore, based on his final active duty basic pay of $8214.60 (O-6 over 22 years), his initial monthly retired pay should have been $4518.03, instead of $3998.00, miscalculated by Defense Finance and Accounting Service (DFAS).  In support of his contentions, the applicant submitted copies of his DD Form 214, his final Leave and Earning Statement (LES) from active duty, the 2006 Basic Pay Chart, AF Form 2656_Data For Payment of Retired Personnel, his initial retired pay statement, and a “Military Compensation” excerpt from the militarypay.defense.gov/Pay/Retirement/ web site.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force lieutenant colonel (O-5).

On 30 May 1984, the applicant was relieved from appointment as a cadet, United States Air Force Academy (USAFA), and ordered to extended active duty effective 30 May 1984.

On 1 July 2006, the applicant was promoted to the grade of colonel (O-6) with a date of rank (DOR) and effective date of 1 July 2006.  

On 31 July 2006, the applicant was relieved from active duty, and retired effective 1 August 2006, per AFI 36-3203, Service Retirements, in the grade of (O-5), having served 22 years, 2 months, and one day of active service.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE AUTHORITY

USC 10 Section 1370. Commissioned officers: general rule: exceptions: (a) Rule For Retirement In Highest Grade Held Satisfactorily - (2)(A) In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years. (Exhibit B)

AIR FORCE EVALUATION

AF/A1LO recommends denying the application.  In accordance with (IAW) AFI 36-3203; Service Retirements, paragraph 2.1.1.1.2. “To voluntarily retire in a grade above major, a commissioned officer generally must have served satisfactorily on active duty in that higher grade with at least three years’ time in grade (TIG); otherwise the AF will authorize the retirement in the next lower grade as directed by 10 USC §1370, unless a waiver is granted under some provision of law.  The applicant pinned-on the rank of colonel (O-6) 1 July 2006, and retired effective 1 August 2006 in the grade of lieutenant colonel (O-5).  Based on the applicant serving only one month in the grade of 0-6, he did not meet the three-year time in grade by law requirement to retire as a 0-6.  

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 19 Aug 2020 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AF/A1LO and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-00983 in Executive Session on 14 October 2020:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 8 January 2020.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AF/A1LO, dated 23 April 2020.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 19 August 2020.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.