RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00827
            INDEX CODE: 129.04, 131.09

            COUNSEL:  NONE

            HEARING DESIRED: NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    He be advanced to  the  highest  grade  held  (HGH)  of  Chief  Master
Sergeant (CMSgt), effective 1 March  1992,  based  upon  over  30  years  of
service in the armed forces as enacted into law per 10 USC  8964(F),  Public
Law 100-180, 4 December 1987.

2.    His retirement order be amended by verbal  orders  of  the  commander,
effective 1 March 1992, pertaining to Department of the Air Force  (DAF)  SO
AC-5135, 23 January 1992, Item 16 (Remarks),  to  read  “Effective  1  March
1992 the above named individual is advanced to the grade  of  CMSgt  on  the
USAF Retired List by reason of completing over 30 years of  service  in  the
Armed Forces as of 1 March 92.  Authority: 10 USC 8964(F) and 8992.”

3.    He be given retroactive pay for the difference in pay  between  senior
master  sergeant  (SMSgt)  and  CMSgt  since  he  retired  based   upon   an
administrative oversight of the DAF Retirement Branch.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The DAF failed to update  Air  Force  directives  pertaining  to  retirement
criteria as enacted IAW US Statutes at Large  (100th  Congress-1st  Session,
1987, Title V, Section 512, Volume 101, Part 2, pages 1090, 1091,  1019  and
1022) and, therefore, denied his advancement to HGH  based  upon  the  added
new criteria outlined in 10 USC 8964(F) as a new part of  the  equation  for
determining another formula for  advancement  to  HGH.   Although  this  new
criteria is under the title “Effective Date,” it is still  a  subsection  of
the “Law” under 10 USC 8964, which all came into effect on 4 December  1987.
 He doesn’t see how the DAF Retirement Branch can elude the  fact  that  all
years of satisfactory service is now creditable for advancement,  under  the
“Law” (USC 8964(F)), so long as it totals 30  years.   Again,  no  where  in
their replies to his requests, do they even attempt to discuss, refer to,
explain, or acknowledge the term “any enlisted reserve member who  completes
30 years of service in the Armed Forces,” as  a  part  of  the  USC  8964  -
higher grade after 30 years: Warrant Officers and Enlisted Members.

In support of the appeal, applicant submits Title 10 USCs, Public  Law  100-
180, HQ USAF Wash DC/DPX message 071145Z Dec 87, AFR and AFI,  letters  with
replies, news articles, Retirement Order, and his DD Form 214 and  statement
of service.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 29  September  1958.   He
was honorably discharged from active duty on 28 September 1970 under AFM 39-
10 (Separation - Insufficient Service Retainability for PCS), in  the  grade
of technical sergeant (TSgt).  He had served 12  years  of  active  military
service.

On 29 October 1970, applicant  enlisted  in  the  United  States  Air  Force
Reserve (USAFR) in the grade of  technical  sergeant  (TSgt)  attaining  the
grade of master sergeant (MSgt) on 11 March 1971.

On 5 August 1974, he reenlisted in the  USAFR  in  the  grade  of  MSgt  and
attained the grade of senior master  sergeant  (SMSgt)  on  9 May  1975  and
CMSgt on 14 May 1976.

On 12 July 1980 and 27 November 1984, he reenlisted  in  the  USAFR  in  the
grade of CMSgt.

On 1 February 1985, he was ordered to extended active duty in the  grade  of
SMSgt.

On 7 April 1988, he reenlisted in USAFR in the grade of SMSgt.

On 1 March 1992, the applicant retired from the USAFR under  the  provisions
of AFR 35-7, Vol - Retirement for Years of Service Established  by  Law,  in
the grade of SMSgt.  He had served a total of 20 years and 4 days of  active
military service and 13 years, 3 months, and 28 days  of  inactive  military
service.

APR/EPR profile since 1984 reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

            21 Jan 84             9
            14 Nov 84             9
            05 Sep 85             9
            05 Sep 86             9
            05 Sep 87             9
            05 Sep 88             9
            05 Sep 89             5 (new system)
            05 Sep 90             5
            31 May 91             5

In accordance with Title 10, United States Code 10, Section 8964, a  highest
grade determination was accomplished and it was determined  that,  effective
27 February 2002, the applicant will be advanced to the grade  of  CMSgt  on
the USAF Retired List by reason of completing a total  of  30  years  active
service plus service on the Retired List.

Public Law 100-180, FY88 National  Defense  Authorization  Act  (FY88  NDAA)
provided for the consideration of Reserve enlisted members  on  active  duty
for grade determination for advancement purposes.  Prior to  this  provision
of law, the law  only  allowed  advancement  consideration  for  AF  warrant
officers and enlisted members of the  Regular  Air  Force.   There  were  no
other substantive changes to that law.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Retirements  Branch,  Directorate  of  Personnel  Program   Management,
AFPC/DPPRR,  reviewed  this  application  and  states  that  the   applicant
requested  voluntary  retirement  to  be  effective   1 March   1992.    His
application was approved and he was correctly retired in the grade of  SMSgt
(the grade he held on the last day of active duty) effective  1  March  1992
after serving 20  Years  and  4  days  of  active  service.   Since  he  had
previously served on active duty in the higher grade of CMSgt and since  the
law had changed to allow  consideration  of  Reserve  enlisted  members  for
advancement at the 30 year point, an  advancement  grade  determination  was
accomplished on him at the time his retirement  application  was  processed.
It was determined that  the  applicant  had  served  satisfactorily  in  the
highest grade of CMSgt and that he be advanced on 27  February  2002,  which
is the date the applicant will have completed 30  years  of  active  service
and service on the retired list.  No injustices  or  irregularities  in  the
processing  of  the   applicant’s   retirement   request   nor   advancement
determination have occurred.  The completion of 30 years of  active  service
plus service on the retired list prior to  advancement  grade  effectiveness
was in effect both prior to and following the amendment to 10  USC  8964  in
December 1987.  All other enlisted members entitled to advancement must  and
do  follow  these  same  provisions  of  law.   They  recommend  denial   of
applicant’s requests.

A complete copy of the evaluation is attached at Exhibit C.

The Senior Attorney-Advisory, AFPC/JA, reviewed this application and  states
that all the amendment to 10 USC 8964 cited by the applicant did was to  add
reservists as  a  new  category  to  those  persons  to  be  considered  for
advancement to the highest grade previously held at the time of reaching  30
years combined active and retired service.

A complete copy of the evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluations and states  that  according
to AFPC/DPPRR and AFPC/JA, the  only  provision  that  applies  to  him  for
advancement to HGH, is USC 8964(A),  of  the  law.   (Paraphrasing  it)---“A
member who retires with less than 30 years of active  service,  is  entitled
to be advanced to the HGH satisfactorily on active  duty,  when  his  active
service plus service  on  the  Retired  List  totals  30  years.”   This  is
absolutely true “IF,” as he  sees  it,  all  that  you  completed  was  only
“active duty service.”  He believes the intent of  10  USC  8964(F)  was  to
credit all service performed during a members military career (active  duty,
Reserve and Retired List service) towards the 30 years  or  more  completion
criteria, aggregately so combined.   Thus  authorizing  advancement  to  the
members HGH satisfactorily on active duty under  this  subsection/paragraph.
In essence, what the DAF Retirement Branch with  the  seemingly  concurrence
of their JA is saying to him, is they do not recognize service in  the  USAF
Reserves (AFRes) or the Air National Guard (ANG) as  a  part  of  the  armed
forces or any service in these branches as a new part of  the  equation  for
crediting this  service  toward  completing  the  30  year  requirement  for
advancement to HGH as outlined in USC 8964(F).  They continue  to  focus  on
the criteria outlined in USC 8964(A) only since this  language  is  repeated
over and over in their correspondence and replies.  They, therefore,  insist
that his understanding or interpretation of Subsection USC 8964(F), or  this
part of the law, is wrong and that this is not a new law that  now  includes
AFRes or ANG service as service in the  armed  forces  toward  the  30  year
completion criteria because only  subsection  USC  8964(A)  (active  service
plus service on the Retired List totaling 30  years)  can  be  applied  when
determining ones advancement to HGH, according  to  them.   He  guesses,  as
they have indicated, USC 8964(F) only pertained to the “effective date  –  4
December   1987,”   which,   as   an   amendment,   contained    this    new
language/criteria but that they must totally disregard and ignore  the  rest
of the language/verbiage printed therein as codified  in  Pub  Law  100-180,
just as they have done and continue to do so.

Applicant's complete response, with attachments, is attached at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, General Law Division, HQ USAF/JAG, reviewed this application  and
states that there is no 10 USC 8964(F).   Section  512(f)  says:  “Effective
Date.  The amendments made by subsections (a) and (c)  shall  apply  to  any
reserve enlisted member who completes 30  years  of  service  in  the  Armed
Forces before, on, or after the date of the  enactment  of  this  Act.”   No
person may be paid retired pay at a higher rate by reason of  the  enactment
of this Act for any period before the date of the  enactment  of  this  Act.
Subsection (c) of Section 512 (codified as 10  USC  8964(a)  and  (b)  added
Reserve enlisted members of the Air Force, serving on  active  duty  at  the
time of retirement, to the categories of persons who could  be  advanced  on
the retired list at the 30 year point.  (Section 512(a) applied only to  the
Army.)  Previously, 10  USC  8964  applied  only  to  warrant  officers  and
enlisted members of the Regular Air Force.  Section 512(c) made  no  change,
however, to the requirement that the 30 years be years of  “active  service”
plus service on the retired list.  “Active service” is  defined  in  10  USC
101(d)(3) as “service on active duty or  full  time  National  Guard  duty.”
The applicant misinterprets Section 512(f).  The purpose of the  subsection,
made obvious by the heading, “Effective Date,” is to make  Section  512(c)’s
advancement in grade provision retroactive  while  keeping  the  payment  of
additional retired pay based on  such  advancement  prospective  only.   Its
phrase, “30 years of service,” is nothing more than  a  shorthand  reference
to the substantive provisions of Section 512(c).  Any  other  interpretation
would make  the  two  subsections  patently  inconsistent.   They  recommend
denial of the application.

A complete copy of their evaluation is attached at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed  the  Air  Force  evaluation  and  provides  specific
comments.  He states that he believes he did meet the provisions  of  Public
Law 100-180, Section 8964, at the time of his retirement.  He also  believes
that these two entities of “law” did modify and  complement  the  provisions
of USC 8964(A) and Public Law 8964(A).  He  would  have,  without  a  doubt,
certainly have met the criteria and provisions contained in the new  10  USC
8963.  After all the back and forth rhetoric, he  guesses  it  really  boils
down to what was the  original  intent  of  the  law?   Which  is  the  real
controlling authority, a Public Law passed by Congress  or  its  translation
printed in the US Code publication?  Actually, they  now  both  reflect  the
same language.  Only the AF legal-beagles see these  provisions  differently
from what he does.
They are trying to use some form of legal jargon to dissuade  everyone  from
the facts.   He  hopes  the  decision  will  not  be  predicated  upon  pure
conjecture or opinions but rather be judiciary in nature.

A complete copy of their evaluation is attached at Exhibit G.

_________________________________________________________________

ADDITIONAL AIR STAFF EVALUATION:

The Chief, General Law Division, Office of the Judge  Advocate  General,  HQ
USAF/JAG, reviewed this application and states that much of the  applicant’s
confusion stems from  a  failure  to  understand  the  relationship  between
public laws in the form passed  by  Congress,  the  United  States  Code  (a
compilation of federal statutory law organized topically  and  published  by
the Government Printing Office), and the U.S.  Code  Annotated  (similar  to
the U.S. Code  but  published  by  West  Publishing  Co.  with  case  notes,
comments on legislative history, and other annotations).  None of it  alters
their previous opinion.  Only  one  matter  deserves  comment.   In  his  25
September 1998 rebuttal, the applicant refers to 10 USC  8963  and  says  he
would have met its criteria – previous  administrative  reduction  in  grade
not as a result of misconduct – in order to be retired  immediately  in  the
highest grade in which he served.  He does not, however, request  relief  on
that basis; rather, he merely cites it as evidence of  Congress’  desire  to
correct certain inequities in the military  retirement  system.   They  note
only that the applicant could not be entitled to any  relief  under  10  USC
8963, because it applies only to  members  who  retire  after  30  September
1996.  They recommend denial of this application.

A complete copy of their evaluation is attached at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and states  the  statutes  were
enacted to correct an injustice towards  those  reservists  who  accepted  a
voluntary reduction in grade in order to  perform  active  duty  assignments
for service to their country.  It allowed those who accumulated  a  combined
aggregated total of 30 years of service in the Armed Forces to  be  advanced
to their HGH, satisfactorily as determined  by  the  Secretary  of  the  Air
Force.  He has never asked for relief or consideration to be applied to  him
under 10 USC  Section  8963  and  has  stated  that  it  was  a  moot  point
concerning him in some of  his  other  replies.   He  hopes  USAF/JAG  isn’t
trying to insinuate that he  considers  this  new  law  applicable  to  him,
because he doesn’t.  He only references this new  law  because  it  supports
his premise that the AF did not desire to require a completion of  30  years
of service in the Armed Forces for advancement  to  ones  HGH  or  HEGH,  as
required under the provisions of Pub Law 100-180,  Section  8964(f)  or  the
1987 amendment to 10 USC Section 8964, upon retirement under 10 USC  Section
8914.  In closing, he would also like to advise that he too, on  9  November
1998 has asked for a clarification of Pub Law 100-180, Section  8964(f)  and
the 1987 amendment to 10 USC Section 8964, from the office of a  congressman
who was in the 100th Congress at the time  this  law  was  enacted,  and  is
still a member of Congress.  He has asked for his opinion, as to  the  exact
intent and meaning since he is a lawyer and lawmaker in his own right.

Applicant's complete response is attached at Exhibit J.

The  applicant  submitted  an  additional  statement  stating  that  he  has
received absolutely no comment or explanation as to  intent,  meaning  or  a
clarification from either  the  Department  of  the  Air  Force  Legislative
Division, whose primary responsibility  is  answering  inquiries  concerning
legal questions or legislation for the DAF or the office  of  the  Honorable
Robert T. Matsui’s office or legal staff offering  any  explanation  of  the
statutes.  He is especially surprised that  Representative  Matsui’s  office
or legal staff would not even try to  interpret  Public  Law  100-180,  Para
8964(F), especially since he was  a  member  of  the  100th  Congress,  that
passed the law while he was  and  still  is  in  office.   In  a  telephonic
conversation with Representative Matsui’s office, it was indicated  that  he
should question the DAF Legislative Division as to  why  the  AF  Directive,
AFI 36-3203,  Chapter  7,  was  not  updated  to  reflect  the  change  1987
Amendment to 10 USC Para 8964, effective 4 December 1987 and/or the new  law
as established as 10 USC 8963, effective 30 September 1996?  He  did  comply
with this request.  He still cannot understand why Rep Matsui’s legal  staff
or he, himself, a lawyer and lawmaker at the time, or  the  DAF  Legislative
Division, have no opinion or are incapable of reading and  interpreting  two
simple statutes of the Pub Law or Title 10 US Codes!

Applicant's complete response, with attachments, is attached at Exhibit K.


_________________________________________________________________

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 probable error or injustice.  Applicant’s contentions are  duly
noted; however, we agree with the opinion  and  recommendation  of  the  Air
Force and adopt their rationale as the basis for  our  conclusion  that  the
applicant has not been the  victim  of  an  error  or  injustice.   In  this
regard, we note that Section 8964, Title 10, United States Code  allows  the
advancement of enlisted members to the highest grade in  which  they  served
on active duty satisfactorily as determined by  the  Secretary  of  the  Air
Force.  The Secretary of the Air Force has delegated this authority  to  the
Secretary of the Air Force Personnel Council (SAF/PC).  The SAF/PC made  the
determination that the applicant did serve  satisfactorily  in  the  highest
grade of chief master sergeant and that he be advanced on the  USAF  Retired
List by reason of completing  a  total  of  30  years  active  service  plus
service on the  Retired  List,  effective  27  February  2002.   Applicant’s
allegation that he meets the requirement of the  law  does  not  offset  the
detailed HQ USAF/JAG opinions.  Therefore, in the  absence  of  evidence  to
the contrary, we find no compelling 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 probable 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 this application in  Executive
Session on 8 April 1999, under the provisions of AFI 36-2603:

      Mrs. Barbara A. Westgate, Panel Chair
      Mr. John E. Pettit, Member
      Mr. Joseph A. Roj, Member
      Ms. Gloria J. Williams, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 20 Mar 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPRR, dated 27 Apr 98, w/atchs.
      Exhibit D. Letter, AFPC/JA, dated 20 May 98.
      Exhibit E. Applicant’s Response, dated 3 Jul 98, w/atchs.
      Exhibit F. Letter, HQ USAF/JAG, dated 17 Aug 98.
      Exhibit G. Applicant’s Response, dated 25 Sep 98, w/atchs.
      Exhibit H. Letter, HQ USAF/JAG, dated 16 Oct 98.
      Exhibit I. Letters, AFBCMR, dated 15 Jun 98, 2 Sep 98
                       and 30 Oct 98.
      Exhibit J. Applicant’s Response, dated 29 Oct 98 and
                       25 Nov 98 w/atchs.
      Exhibit K. Applicant’s Additional Response, dated 10 Feb 99.






                             BARBARA A. WESTGATE
                             Panel Chair