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.

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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.

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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