ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02589 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His disability retirement be changed to a length of service retirement. RESUME OF CASE: On 26 July 2011, the Board considered and denied applicant’s request to change his disability retirement to a length of service retirement. The applicant argued he was denied a length of service retirement and forced to accept a disability retirement, which resulted in his receiving a reduced amount of retired pay. After a thorough review of the evidence of record, the Board found the evidence was not sufficient to conclude the applicant was somehow precluded from submitting a request for a length of service retirement. Furthermore, it was uncertain if he was actually denied the opportunity to elect a length of service retirement or he made a choice he later regretted. For an accounting of the facts and circumstances surrounding the rationale for the earlier decision by the Board, see the Record of Proceedings at Exhibit E (with Exhibits A through D). On 25 February 2014, the applicant filed suit in the United States District Court of Federal Claims. On 5 March 2014, the Court remanded the case to the Board for reconsideration with instructions to consider that the Air Force Board for Correction of Military Records (AFBCMR) failed to apply 10 U.S.C. §1401(b) to his retirement application and any other matters the applicant presents in writing regarding his retirement (Exhibit F). AIR FORCE EVALUATION: AF/JAA recommends denial noting 10 U.S.C. §1409(a)(1)(A), prohibits using §1401(b) for calculating the retired pay of service members who are disability retired under Chapter 61. Under 10 U.S.C. §1201, the service Secretary may retire a service member, with retired pay computed under 10 U.S.C. §1401, when a service member is unfit to perform the duties of his office, grade, rank, or rating due to a disability. Title 10 U.S.C. §1401(a) limits the maximum percentage for a physical disability retirement to 75 percent. The 75 percent cap equates to a 30-year career and only affects service members who retire for a disability after more than 30 years of service. The applicant argues that federal law requires that he be paid at a higher percentage of active duty pay than that prescribed in 10 U.S.C. §1401(a). He believes he is entitled to a higher percentage for retired pay for a length of service retirement per 10 U.S.C. §8918. He further believes his percentage should be close 80 percent, based on his over 31 years of active service. Title 10 U.S.C. §1401(b) describes the use of the most favorable formula for calculating retired pay. If a person would otherwise be entitled to retired pay computed under more than one formula of the table in subsection (a) or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him. However, according to AF/JAA, the most favorable formula provision in §1401(b) does not entitle a service member who receives a disability retirement to the more generous retirement formula for a longevity retirement under §8918. In the present case, the member is attempting to obtain the more generous retired pay multiplier contained at 10 U.S.C. §1409(b)(3)(B), which states: “(B) Retirement after December 31, 2006-In the case of a member who retires after December 31, 2006, with more than 30 years of creditable service, the percentage to be used under subsection (a) is the sum of- (i) 75 percent; and (ii) the product (stated as a percentage) of- (I) 2 1/2; and (II) the member's years of creditable service (as defined in subsection (c)) in excess of 30 years of creditable service, under conditions authorized for purposes of this subparagraph during a period designated by the Secretary of Defense for purposes of this subparagraph.” The retired pay multiplier in §1409 is not available to service members through the most favorable formula in §1409(b) because it is prohibited by §1409(a)(1)(A), especially for those service members who are entitled to retired pay under Chapter 61 of Title 10 U.S.C. In addition, §1401(a), formula number 5, does not provide a retirement calculation using §1409 and excludes using this formula for §1201 disability retirements. A complete copy of the AF/JAA evaluation is at Exhibit G. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel states the advisory opinion is incorrect and to narrowly focuses on one provision of the statute. When read together the statutes mandate the applicant’s retirement pay should be based on his over 31 years of service, without penalty for his disability. If the advisory opinion is correct, then the applicant is being penalized by receiving less retirement pay because he incurred a minor injury while on active duty. Penalizing an individual who is otherwise eligible for a length of service retirement is arbitrary and capricious, and is contrary to the express purpose of Congress that a disabled service member’s retirement pay be calculated under the formula or other provision of law most favorable to that service member. The applicant is entitled to retirement under 10 U.S.C. §8918, which provides that a regular commissioned officer of the Air Force who has at least 30 years of service computed under §8926 may be retired upon his request. At the time of the applicant’s injury, he requested retirement and was eligible for retirement based on his more than 30 years of service. Nonetheless, he was mandatorily processed for disability retirement and in response to his petition to the AFBCMR an advisory opinion stated, that the applicant could not waive disability processing because he served at the discretion of the President and may be recalled. Title 10 U.S.C. §688 excludes officers retired on early retirement from recall, it does not preclude recall on officers with 30 plus years of service who retired on disability. Therefore, the recall statute is not a bar to a retirement under §8918. Furthermore, there is no statutory authority that mandated the Air Force to retire the applicant for disability. Section 1401(b) states if a person would otherwise be entitled to retired pay computed under more than one formula under subsection (a) of 1401 or any other provision of law that person is entitled to be paid under the formula that is most favorable to him. Therefore, the applicant is entitled to retired pay for his over 30 years of service with retired pay calculated near 80 percent rather than the 75 percent cap for a disability retirement. While the most favorable formula is found in §1409(a) and §1401(a) of Title 10 U.S.C., the advisory focused on using the most favorable formula number 5 of §1401 and excluded the use of it in §1409(a)(1)(A). Under §1409(a), a person is entitled to that pay under any provision of law, except for a person entitled to retirement pay under disability, non-regular, or Fleet Reserve statutes. Section 1409(a) is in harmony with §1401 and §8918 if it covers persons entitled to retired pay under any provision of statute or law except for persons only entitled to retirement under disability, non-regular, or Fleet Reserve statutes. If read any other way §1409(a) will negate §8918 and §1401, but nothing in §1409(a) precludes an individual from being entitled to retirement under both the disability and any other statute. It also appears under §1401(b) an individual may be entitled to retirement pay under the formulas under §1401(a) and any other provisions of law. The retired pay for individuals who retired under the disability statute pay is capped at 75 percent. However, §1409(b)(3) lifts the 75 percent cap for individuals who retired with over 30 years of service. Formula number 5 under §1401 incorporates the multiplier of §1409(a) to calculate retired pay for disabled individuals. However, §1401(b) recommends using the most favorable formula. Since the applicant was entitled to retired pay under more than one statute, his retired pay should have been calculated under the formula most advantageous for him. His entitlement to a retirement based on his over 30 years of service should not have been disregarded because of he had a disability. The advisory opinion stages an unnecessary conflict between two statutes, §1409(a)(1)(A) and formula number 5 of §1401(a) by acknowledging formula number 5 references the §1409(a) multiplier but also noting that §1409(a)(1)(A) putatively excludes use of that formula. The principle used to resolve a conflict between two statutes is that the specific statute governs over the statute with general language. If §1409 is the appropriate statute to follow then §1401(a) and (b) are meaningless, which is not in accordance with law. Statutes should be construed to avoid rendering superfluous statutory language. Therefore, §1409(a)(1)(A), formula number 5 is not the answer because that would make §1401(a) formula number 5 superfluous. A reading of the statutes provides that a disabled individual who has more than 30 years of service is entitled to the higher multiplier of §1409(b)(3), which would be in line with Congress’ intent to use the most favorable formula or law. Congress’ intention was for a disabled service member’s retired pay to be calculated using the most favorable formula to the service member. Counsel’s complete response is at Exhibit I. THE BOARD CONCLUDES THAT: 1. After again reviewing the applicant’s request to have his retired pay computed under the more favorable formula in 10 USC Section 8918 (length of service), rather than 10 USC Section 1201 (physical disability), we are not convinced that the applicant’s retired pay was calculated improperly. While we note Counsel’s many legal arguments intended to undermine the Air Force’s interpretation and application of the governing statutes in effect at the time of the applicant’s retirement, we note that this Board is not a court. The Board does not resolve questions of law and must therefore rely on the opinions of those offices within the Air Force whose charter is to interpret statutes. We therefore accept the recommendations provided by AF/JAA and adopt its rationale as the basis for our conclusion that the applicant’s military retired pay was computed appropriately in accordance with the governing statutes and Air Force policy. 2. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice. In this respect, we note that while the applicant has not brought forth evidence indicating that he was somehow miscounseled or deprived of the opportunity to elect a length of service retirement over a disability retirement, we find it reasonable to conclude that had the applicant clearly understood that the implications of choosing a disability retirement over a length of service retirement would have resulted in a reduced retired pay multiplier, he would have likely elected to discontinue his processing under the disability evaluation system (DES) and apply for a length of service retirement. Therefore, we believe it is in the interest of justice to correct the applicant’s records to reflect that he retired under length of service rules rather than for physical disability. However, as the law requires that those retiring for length of service do so on the first of the month, we also recommend his records be corrected to reflect that the effective date of his retirement be 1 September 2009, instead of 29 August 2009. 3. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that he did not retire on 29 August 2009 under the provisions of Title 10, United States Code (U.S.C.), Section 1201 (physical disability), but continued to serve on active duty until 31 August 2009, when he was relieved from active duty and retired, effective 1 September 2009, under the provisions of Title 10, U.S.C., Section 8918 (length of service). The following members of the Board considered AFBCMR Docket Number BC-2010-02589 in Executive Session on 2 Oct 14, under the provisions of AFI 36-2603: , Panel Chair , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit E. Record of Proceedings, dated 19 Dec 11, w/Exhibits. Exhibit F. US Court of Federal Claims Remand Order, dated 5 Mar 14. Exhibit G. Letter, AF/JAA, dated 1 Aug 14. Exhibit H. Letter, SAF/MRBR, dated 15 Aug 14, w/atch. Exhibit I. Letter, Counsel, dated 12 Sep 14.