RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-01118
INDEX CODE: 129.04
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His retirement pay be calculated based on his highest grade held (master
sergeant (E-7)).
_________________________________________________________________
APPLICANT CONTENDS THAT:
He held the grade of E-7 for over seven years. His retirement papers were
accepted and a date set to retire prior to 11 September 2001 and the Stop-
Loss implementation. He was reduced in rank during the stop-loss period.
He believes he was judged unfairly and that his commander seemed intent on
making his retirement difficult.
Applicant provides no supporting documentation. The applicant’s submission
is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 30 November 2002, the applicant was relieved from active duty and was
retired in the grade of technical sergeant (E-6) effective 1 December 2002.
Applicant was credited with 22 years, 8 months and 19 days of total active
duty service for basic pay and 22 years, 8 months and 7 days active service
for retirement. Prior to the events under review, he had been
progressively promoted to the grade of master sergeant (E-7), with a date
of rank of 1 September 1994.
On 26 September 2001, the applicant submitted an application for
retirement, with an effective retirement date of 1 February 2002. On 13
March 2002, the applicant was reduced in grade from master sergeant to
technical sergeant as a result of the imposition of nonjudicial punishment
on him under Article 15, Uniform Code of Military Justice (UCMJ) based on
his commander’s determination that he had stolen merchandise of a value of
$83.60 from an AFEES Power Zone.
On 12 July 2002, the SAF/PC made the determination that the applicant did
serve satisfactorily in the higher grade of MSgt within the meaning of
Section 8964, Title 10, United States Code. The applicant will be advanced
to the grade of MSgt effective 24 March 2010.
The remaining relevant facts pertaining to his nonjudicial punishment,
extracted from the applicant’s military records, are contained in the
letter prepared by the appropriate office of the Air Force at Exhibit C.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLSA/JAJM reviewed this application and recommends denial. JAJM states
that the applicant was accused of theft from the AAFES Power Zone in
violation of Article 121, UCMJ. On 12 March 2002, after consulting with
counsel, the applicant waived his right to demand trail by court-martial,
accepted non-judicial punishment and submitted a written statement. He
also requested a personal appearance with the commander. On 13 March 2002,
the commander determined that the applicant had committed the offense
alleged and imposed punishment consisting of a reduction to E-6 and a
reprimand. The applicant appealed; the appeal was denied. JAJM states
that the applicant has provided no evidence of a clear error or injustice
related to the nonjudicial punishment action. The AFLSA/JAJM evaluation is
at Exhibit C.
AFPC/DPPPWB reviewed this application and recommends denial. DPPPWB states
that the applicant’s punishment consisted of a reduction from the grade of
MSgt (E-7) to TSgt (E-6) with a new date of rank of 13 March 2002. He
retired on 30 November 2002 in the grade of TSgt. DPPPWB states that the
demotion action taken against the applicant was procedurally correct and
there is no evidence there were any irregularities or that the case was
mishandled. AFPC/DPPPWB evaluation is at Exhibit D.
AFPC/DPPRRP reviewed this application and recommends denial. DPPRRP states
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 held on the date of his
retirement.” The applicant’s grade held on the last day of active duty was
TSgt and was correctly retired in the grade of TSgt. DPPRRP states that
Public Law 103-337, Section 1401a(f), Title 10 United States Code (which
discusses the pay inversion/Tower amendment) now reads as follows: “In
computing the amount of retired pay to which such a member or former member
would have been entitled on that earlier date, the computation shall be
based on his grade, length of service, and the rate of basic pay applicable
to him at that time, except that such computation may not be based on a
rate of basic pay for a grade higher than the grade in which the member is
retired.” Therefore, since the applicant retired in the grade of technical
sergeant, his retired pay will be based on the pay rates in effect for
technical sergeant. DPPRRP states that all criteria of the pertinent laws
have been met in this regard and no error or injustices occurred in the
applicant’s retirement, retired grade, grade determination or advancement
action. AFPC/DPPRRP evaluation, with attachments, is at Exhibit E.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on 29
August 2003 for review and response (Exhibit F). As of this date, this
office has received no response.
_________________________________________________________________
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. After a thorough review of the evidence
of record and the applicant’s submission, we are not persuaded that his
retirement pay should be calculated at the grade of master sergeant. In
this regard, we agree with the opinion and recommendation of the Air Force
office of primary responsibility that in accordance with Section 8964,
Title 10, USC, the applicant was correctly retired in the grade of
technical sergeant, which was the grade he held on the date of his
retirement and that the applicant will be advanced to the grade of master
sergeant effective the date of completion of all required service. In the
absence of evidence which successfully refutes the Air Force assessment of
this case or showing that the actions taken to effect the applicant’s
reduction in grade were erroneous or unjust, 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 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 23 October 2003, under the provisions of AFI 36-2603:
Mr. Joseph A. Roj, Panel Chair
Ms. Beth M. McCormick, Member
Mr. James E. Short, Member
The following documentary evidence for AFBCMR Docket Number BC-2003-01118
was considered:
Exhibit A. DD Form 149, dated 14 Mar 03.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLSA/JAJM, dated 7 Jul 03.
Exhibit D. Letter, AFPC/DPPPWB, dated 25 Jul 03.
Exhibit E. Letter, AFCP/DPPRRP, dated 21 Aug 03 w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 29 Aug 03.
JOSEPH A. ROJ
Panel Chair
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