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AF | BCMR | CY2002 | 0101977
Original file (0101977.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  01-01977
                 INDEX CODE:  135.00
      APPLICANT        COUNSEL:  NONE

                 HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His active duty retired pay be adjusted due to Reserve service he performed
and a Reserve promotion he received after his retirement from  the  Regular
Air Force.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He was told by his Reserve organization that he would be credited  with  his
Reserve service when he reached age 60.

In support of his request applicant submitted a personal statement  (Exhibit
A).

___________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force  on  6  Aug  1958.   He  was
progressively promoted to the grade of  technical  sergeant  and  served  on
active duty until 31 Jan 1979, when he was relieved  from  active  duty  and
retired under the provisions of Title 10, United States Code (USC),  Section
8914, effective 1 Feb 1979.  He was credited with 20 years, 5 months and  25
days of active service for retirement.  He was transferred  to  the  Retired
Reserve until 6 Aug 1988.

On 22 Feb 1979, orders were  published  announcing  the  applicant’s  relief
from the Retired  Reserve  Section  and  assignment  to  an  active  Reserve
position, effective 15 Feb 1979.  He was promoted to  the  grade  of  master
sergeant effective 5 Nov 1979 and continued to serve until his discharge  on
30 Jan 1985.  Available records indicate he  earned  satisfactory  years  of
Federal service for the Retirement Years Ending (RYEs) 1980, 1981, 1982  and
1983.

___________________________________________________________________

AIR FORCE EVALUATION:

The Personnel Programs Branch, ARPC/DPP, indicated  the  only  provision  of
the law that authorizes retired pay to be recomputed due  to  service  after
retirement is Title 10 USC, Section 1401, (a), which states, “ A  member  of
an armed force who first became a  member  of  a  uniformed  service  before
September 8, 1980, and who has become entitled to retired  pay  or  retainer
pay, and who thereafter serves on active duty (other than for training),  is
entitled to recompute his retired pay or retainer pay upon his release  from
that duty.”

DPP states that since all of the applicant’s active duty  service  with  the
Reserve was active duty for training, his retired pay cannot  be  recomputed
due to his active duty service.  In addition, there  are  no  provisions  of
law that allow the applicant’s retired  pay  to  be  changed  due  to  later
Reserve service or for the retired pay grade to be changed due  to  a  later
Reserve promotion as a member of the  Air  Force  Reserve.   Therefore,  DPP
recommends the applicant’s request be denied (Exhibit C).

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and indicated that he  feels
all duty he performed for the Air Force Reserve  was  nothing  more  than  a
continuation of active duty service not withstanding what the early  capture
off the retired list showed. Title 10  USC  section  1042  was  passed  long
after his service with the Reserve and it was an injustice pure  and  simple
that he did not receive any information on this years ago (Exhibit E).

___________________________________________________________________

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.  After a thorough  review  of  the
evidence of record and the applicant’s  submission,  we  are  not  persuaded
that the applicant’s  creditable  service  and  grade  for  the  purpose  of
computation of his active duty retired pay is erroneous or inequitable.   We
are constrained to note that different laws  govern  retired  pay  based  on
active duty and Reserve service.  We have noted the  applicant’s  contention
that he was advised he would be credited with his Reserve  service  and  his
retired pay would  be  adjusted  when  he  reached  age  60.   However,  the
applicant  has  provided  no  evidence  to  corroborate  his  assertions  of
miscounseling.  In the absence of such evidence,  information  showing  that
the computation of his retired pay is contrary to  the  governing  laws  and
regulations or that he  was  treated  differently  from  similarly  situated
members, we agree with the opinion  of  the  Air  Force  office  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not  been  the  victim  of  an  error  or  injustice.
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 6 November 2001, under the provisions of AFI 36-2603:

      Ms. Peggy E. Gordon, Panel Chair
      Mrs. Carolyn J. Watkins, Member
      Mr. John B. Hennessey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Jun 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ARPC/DPP, dated 13 Sep 01.
    Exhibit D.  Letter, SAF/MIBR, dated 28 Sep 01.
    Exhibit E.  Applicant’s Response dated 27 Oct 01, w/atchs.




                                   PEGGY E. GORDON
                                   Panel Chair

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