RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03970
            INDEX CODE:  131.09

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect that on 1 Feb 84,  he  retired  in
the grade of staff sergeant, which was the highest grade he held; and,
that he receive all back pay and allowances from 1 Feb 84  to  27  Dec
93.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Based on the rule that was in effect when he retired on 1 Feb  84,  he
should have been retired in the grade of staff sergeant, which was the
highest grade he held.

In support of his appeal, the applicant  provided  extracts  from  his
military personnel  records,  to  include  copies  of  his  separation
documents and retirement order.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant initially enlisted in the Regular Air  Force  on  20 May 63.
On 15 Aug 75, he was honorably discharged from the Air Force  with  12
years, 2 months, and 26 days of active service.

Applicant enlisted in the ----- Air National Guard (ANG) on 23 Sep  75
and was honorably discharged from the ANG on 22 Mar 76.

On 24 Mar 76, the applicant again enlisted in the Regular Air Force.

On 24 Sep 79, he received nonjudicial punishment under Article 15  for
failure to obtain proper insurance  on  his  privately  owned  vehicle
(POV), resulting in forfeitures of $150.00.

On 28 Jul 80, he received a letter of reprimand (LOR) for  dereliction
in the performance of his duty.

On 11 Aug 80, his name was placed on the control roster  for  repeated
financial irresponsibility.  His name was again placed on the  control
roster on 12 Jan 81 for financial irresponsibility.

On 13 Oct 81, he received an LOR for financial irresponsibility.

On 2 Nov 81, he received an LOR for issuing a  check  of  $60.00  with
insufficient funds in his account.

On  21  Oct  82,  he  received  an  LOR  for   indebtedness   to   the
noncommissioned officer (NCO) Open Mess.

On 22 Dec 82, he received nonjudicial punishment under Article 15  for
financial  irresponsibility  and  was  reduced  in  grade  from  staff
sergeant to sergeant.

On 19 Aug 83, he received nonjudicial punishment under Article 15  for
wrongfully  and  unlawfully  making  and  uttering  a  check   without
sufficient funds and was reduced in  grade  from  sergeant  to  airman
first class.

On 31 Jan 84, the applicant was relieved from active duty and retired,
effective 1 Feb 84, in the grade of airman first class, with 20 years,
1 month, and 3 days of active duty service.

Effective 28 Dec 93, the applicant was advanced to the grade of  staff
sergeant on the Air Force Retired List  by  reason  of  completing  30
years service on 27 Dec 93.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letter prepared by the appropriate office of the  Air
Force.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP recommended denial noting that  Section  8961,  Title  10,
United States Code, states:  “Unless  entitled  to  a  higher  retired
grade under some other provision of law, a Regular or Reserve  of  the
Air Force...who retires other than for physical disability retires  in
the Regular or Reserve  grade  that  he  holds  on  the  date  of  his
retirement.”  In the applicant’s case,  the  grade  was  airman  first
class.

AFPC/DPPRRP indicated that, based on Comptroller General Decision,  B-
187683, dated  23  Jun  77  (Tower  Amendment),  a  member  must  have
completed over twenty (20) years of  active  service  prior  to  being
reduced in order to retire in a higher grade.  The  applicant’s  first
retirement eligibility was in Dec 83 and he was reduced from the grade
of sergeant to airman first class effective Aug 83, which was prior to
being retirement eligible.  Therefore, the  Tower  Amendment  did  not
apply to the applicant.  He was retired correctly in the grade of A1C.

AFPC/DPPRRP noted that Section 8964, Title  10,  United  States  Code,
allows the advancement of enlisted members (when their active  service
plus service on the retired list totals 30 years) on the retired  list
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.   On  20  Jan  84,  the
Secretary of the Air Force Personnel Council  made  the  determination
that the applicant did serve satisfactorily in a higher  grade  within
the meaning of Section 8964 and directed  applicant’s  advancement  to
the grade of staff sergeant on the retired list effective 28  Dec  93.
According to the Defense Finance Accounting Service (DFAS) pay record,
applicant was advanced to the grade of staff sergeant and is currently
receiving retired pay in the grade of staff sergeant.

AFPC/DPPRRP indicated that, in accordance with Section 8961, Title 10,
United States Code, and Comptroller  General  Decision  B-187683,  the
applicant was correctly retired in the grade of  airman  first  class,
which was the grade he held on the effective date of  his  retirement.
In their view, the Tower Amendment was not applicable to the applicant
because he was reduced in grade prior to completion  of  20  years  of
active service.

A complete copy of the AFPC/DPPRRP evaluation, with attachments, is at
Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  28
Feb 03 for review and response.  As of this date, no response has been
received by this office (Exhibit D).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of  error  or  injustice  warranting  corrective  action
regarding the applicant’s request that his  records  be  corrected  to
reflect that he retired on 1 Feb 84 in the grade  of  staff  sergeant,
which was the highest grade he held; and, that he receive all back pay
and allowances from 1 Feb 84 to 27 Dec 93.  It appears that the  basis
for the applicant's request is his belief that the Comptroller General
Decision B-187683 (Tower Amendment) is applicable  to  his  situation.
However, we note that the Tower Amendment pertains to  retirement  pay
recalculation, and not to  a  change  in  grade.   In  order  for  the
applicant to have been eligible for retirement pay recalculation under
the Tower Amendment, he would have needed 20 years of  active  service
at the time he held the higher grade.  Since the applicant was reduced
in grade prior to completion of 20 years of active service, the  Tower
Amendment is  not  applicable  to  his  situation.   In  view  of  the
foregoing, and in the absence of sufficient evidence to the  contrary,
we find no compelling  basis  to  grant  the  relief  sought  in  this
application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 AFBCMR Docket Number BC-
2002-03970 in Executive Session on 13 May 03, under the provisions  of
AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. John B. Hennessey, Member
      Mr. E. David Hoard, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Jan 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 4 Feb 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Feb 03.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair