RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-03507
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His retired pay be based on the grade of lieutenant colonel.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was considering whether to retire or to pull his papers and stay in
the Air Force for the 13 additional months needed to obtain  3  year’s
time as  a  lieutenant  colonel.   While  trying  to  decide,  he  was
counseled by the NCOIC, Retirements and Separations  that  based  upon
her investigation of the applicable regulations, his retirement  would
be based upon his grade on his last day of active duty.  Because there
were confusing footnotes concerning this in  the  regulations  he  had
been referred to, he trusted that as the NCOIC, she knew what she  was
talking about and in good faith, went ahead and retired after 24 years
of active duty.  However, he has now received his retired pay  and  it
is based on major pay and not lieutenant colonel pay as the person  in
a position of authority over the section whose mission  is  to  ensure
members are appropriately retired told him.

In support of the appeal, applicant submits a letter from the NCOIC in
the Retirement and Separation office.  Applicant's complete submission
is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty as a  commissioned  officer  in  the
grade of second lieutenant on 10 January 1984.  He  was  progressively
promoted to the grade of lieutenant colonel, effective and with a date
of rank of 1 September 2000.

On 11 February 2002, applicant submitted an application for  voluntary
retirement, to retire in the grade of major (04), which  was  approved
to be effective 1 July 2002.  However,  his  approved  retirement  was
suspended under the provisions of Stop Loss.

On 30 April 2002, applicant submitted  a  Stop  Loss  waiver  request,
which was approved on 17 May 2002.  Upon approval  of  his  Stop  Loss
waiver, applicant submitted an application  for  voluntary  retirement
requesting an effective date of retirement  of  1  August  2002.   His
application for retirement to be effective 1 August 2002, was approved
by Special Order AC-016967.   On  31  July  2002,  the  applicant  was
relieved from active duty and, effective 1 August 2002, retired in the
grade of major.  He was credited with 24 years, 1 month and 16 days of
active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP states that Section 1370, Title 10,  United  States  Code,
paragraph (a)(2)(A) states:  “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 in the case of  retirements
effective during the period beginning on October 1, 1990,  and  ending
on December 31, 2001.”  Applicant’s  time-in-grade  requirement  would
have been completed on 31 August 2003.

Section 1370, paragraph (a)(2)(B), also provides  that  the  President
may waive paragraph (a)(2)(A) in individual  cases  involving  extreme
hardship or exceptional or unusual circumstances.   The  authority  of
the President under the  preceding  sentence  may  not  be  delegated.
Applicant voluntarily applied for retirement and was fully aware  that
he was going to be retired in the grade of major.  No extreme hardship
or exceptional or unusual circumstances were involved in this case.

Section 1370, paragraph (b)  states:   “An  officer  whose  length  of
service in the highest grade he held while on  active  duty  does  not
meet the service in grade  requirements  specified  in  paragraph  (a)
shall be retired in the next lower grade in which he served on  active
duty satisfactorily, as determined by the Secretary  of  the  military
department concerned for not less than  six  months.”   Applicant  had
served on active duty in the grade of major for over 5 years.

In reference to the applicant indicating  that  there  were  confusing
footnotes in the regulation concerning his retired pay being based  on
the grade he held on his last day of active duty, AFI 36-3203. Service
Retirements, Table 2.2, Rule 4 states, “If member holds the  grade  of
Lt Col, Col, Brigadier General or Major General and has not served  on
active duty at least 3  years  in  that  grade  as  of  the  requested
retirement date, then the restriction is waiverable by  the  President
for extreme hardship or  in  exceptional  or  unusual  circumstances.”
Rule 4 of Table 2.2, also refers to note 4, which specifically states,
“Officers  who  cannot  justify  waiver  of  the  time-in-grade  (TIG)
requirement, or whose waiver request is disapproved, may ask to retire
in the next lower grade held satisfactorily  on  active  duty  for  at
least six months.  Show such requests in the  remarks  section  of  AF
Form 1160 over the applicant’s signature and include documentation  to
substantiate waiver of any ADSC.”  Applicant’s retirement  application
did not include a request  to  waive  the  three  years  time-in-grade
requirement to retire in the grade of Lt Col, but it did  include  the
statement  in  the  remarks  section,  “Request  to  retire  as   04.”
Applicant held the grade of Lt Col on his last day of active duty, but
he voluntarily submitted an application for retirement  indicating  he
wanted to retire in the lower grade of major, therefore,  his  retired
pay is based on the grade of major.

Applicant’s Date of Initial Entry into Uniformed Service (DIEUS) is 11
December 1977 which established his retired pay based to  be  computed
under Section 1406, Title 10, United  States  Code,  paragraph  (e)(1)
that states:  “In the case of a member whose retired pay  is  computed
under section 8991 of this title or who is  entitled  to  retired  pay
computed under section 8992 of this title, the  retired  pay  base  is
determined in accordance with  the  following  table.   For  a  member
entitled to retired pay under section 8911 the retired  pay  base  is:
Monthly basic pay of the member’s retired grade.”   Applicant  retired
under section 8911 and elected  to  retire  in  the  grade  of  major,
therefore, his retired pay was computed in  the  grade  of  major,  in
accordance with Section 1406.  Therefore,  they  recommend  denial  of
applicant’s request.  They state the following:

      a.  The applicant was correctly retired in the grade  of  major.
Since he did not meet the time-in-grade requirements of law to  retire
in the highest grade held on active duty, he elected to retire in  the
next lower grade in which he served on active duty satisfactorily  for
at least six months.  This was a voluntary action on  the  applicant’s
part and should not be changed.

       b.  They  can  neither  confirm  nor  deny  that  miscounseling
actually occurred, but miscounseling does not  negate  the  fact  that
Section 1370, Title 10, United States Code is specific in  its  intent
that in order to be credited with satisfactory service in  an  officer
grade above major or lieutenant commander, a person must  have  served
satisfactorily in that grade for three years.  It would be  inherently
unfair to allow the applicant to received retired pay  in  his  active
duty grade (Lt Col) and receive no  penalty  for  not  completing  the
three year time-in-grade requirement established  by  law,  when  they
cannot grant the same relief to other officers  who  also  voluntarily
elected to retire in a lower grade.  No irregularities occurred in the
processing of the retirement request and all  provisions  of  the  law
have been correctly met.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and states, based  on  the
information he received  he  acted  in  good  faith.   Therefore,  his
retirement pay should be based on his base pay  on  his  last  day  of
active duty as indicated  to  him  by  TSgt  W---,  or  he  should  be
reinstated onto active duty in the Air Force at his old duty  location
until he obtains the time in  grade  it  would  take  for  him  to  be
eligible to retire as lieutenant colonel.  It would make sense for him
to be temporarily assigned to HQ  AMC/SG,  Directorate  of  Healthcare
Optimization, as that is where he was slated to be assigned as an  IMA
reservist upon  approval  of  his  reserve  application.   Applicant's
response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, HQ USAF/JAG reviewed this application
and stated that after counseling, the applicant mistakenly  understood
that his retirement pay would be based on his monthly basic pay on the
day before he retired, rather than monthly basic pay  of  his  retired
grade.  It was based on this  erroneous  advice  that  he  elected  to
retire as planned  on  1  August  2002.   JAG  noted  the  applicant’s
reference  to  10  USC  1370,  as  amended  by  the  National  Defense
Authorization Act for Fiscal Year 2003, which permits the Secretary of
Defense  (SecDef)  to  authorize  the  Secretaries  of  the   military
departments to reduce the  three-year  in  grade  requirement  to  two
years, effective during the period beginning 1 October 1990 and ending
31 December 2001.  JAG notes that this  authority  expired  after  the
applicant’s separation but that it was renewed by law for the period 1
October 2002 and ending on 31 December 2003.  Additionally,  and  more
importantly, HQ USAF/DP advised JAG that the SecDef has not  delegated
the above-cited authority to reduce the three-year  service  in  grade
requirement to the service secretaries.  Thus, should the Board desire
to recommend retirement as a lieutenant colonel with  credit  for  two
years of time in grade, the  Secretary  of  the  Air  Force  would  be
without authority to execute it.

Should the Board determine the applicant was miscounseled,  JAG  would
have no objection to recommending the applicant be recalled to  active
duty to serve an  additional  13  months  in  order  to  retire  as  a
lieutenant colonel.  A complete copy of this evaluation is at  Exhibit
F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reiterated his initial contentions concerning his
retired grade and offered to accept reinstatement onto active duty
(See Exhibit G).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of injustice.  Although no evidence has been  provided  that
would lead  us  to  believe  the  applicant’s  retired  pay  has  been
calculated in a manner contrary to the governing regulations  and  the
law, we believe some form of relief is appropriate in this case  based
on findings of injustice.  We are satisfied by the  evidence  provided
that the applicant was miscounseled concerning the calculation of  his
retired pay based on his circumstances at the time and that he  relied
on this miscounseling to  his  detriment.   We  are  not  inclined  to
recommend correcting the records to show the applicant received active
duty credit for a 13-month period when  he  actually  did  not  serve.
Rather, we believe he would be afforded proper and fitting  relief  by
offering him the opportunity to return to active duty for the required
period of time for him to receive retired pay based on  his  grade  of
lieutenant colonel.  We have  noted  the  applicant’s  request  for  a
particular assignment.  However, in cases of this nature,  we  believe
that the needs of the service, as well as  those  of  the  individual,
must be considered.   Therefore,  we  believe  his  record  should  be
corrected to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that, provided  he  accepts
the offer of recall to active duty within 60 days of the date such  an
offer is made, he be voluntarily ordered to extended  active  duty  in
the grade of lieutenant colonel for a period of 13 months.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 20 October 2003 under the provisions of  AFI  36-
2603:

                 Ms. Marilyn Thomas, Vice Chair
                 Mr. William H. Anderson, Member
                 Mr. Thomas J. Topolski, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 30 October 2002, with
                 attachments.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRRP, dated 17 December 2002,
                 with attachments.
     Exhibit D.  Letter, SAF/MRBR, dated 3 January 2003.
      Exhibit E.  Applicant’s Letter, dated 8 January 2003.
      Exhibit F.  Letter, HQ USAF/JAG, dated 25 March 2003.
      Exhibit G.  Applicant’s Letter, dated 24 March 2003, with
                 Attachments.




                                   MARILYN THOMAS
                                   Vice Chair








AFBCMR BC-2002-03507




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to, be corrected to show that he was not relieved from
active duty on 31 July 2002 and retired in the grade of major,
effective 1 August 2002, but was continued on active duty for the
Convenience of the Government until 31 August 2003, on which date, he
was honorably relieved from active duty and retired in the grade of
lieutenant colonel, effective 1 September 2003.







     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency





MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                                       CORRECTION OF MILITARY RECORDS

SUBJECT:  AFBCMR Case of, Docket No. BC-2002-03507

      I have carefully reviewed all the circumstances of this case and do
not agree with the recommendation of the panel that the applicant would be
provided proper and fitting relief by offering him the opportunity to
return to active duty to complete his active duty service commitment for
retirement in the grade of lieutenant colonel.  It is my opinion that the
interests of both the service and the individual would best be served by
correcting his record to show he continued on active duty until he would
have completed the three-year commitment and allow him to retire in the
higher grade.

      Although I agree with the panel that the applicant should be
afforded relief because of the miscounseling he received upon which he
relied to his detriment, in view of the specific circumstances of his
case, offering the applicant the opportunity to return to active duty at
the present time would cause an undue burden to the service and possibly
to the applicant as well.  The applicant has expressed no interest in
returning to active duty for a period longer than that required to accrue
three years of service in the grade of lieutenant colonel.  I am aware
that returning a member to active duty under these circumstances for a
period of less than two is not considered a benefit to the Air Force from
a cost effective standpoint.  In view of this and in consideration of the
disruption to the applicant’s life that would occur by requiring him to
return to active duty to rectify an injustice caused by an Air Force
error, his records should be corrected to show he was not discharged but
that he completed the service required to retire in the grade of
lieutenant colonel.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency