RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02624
            INDEX CODE 131.09
            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be retired on 1 Jul 94 in the grade of staff sergeant  (SSgt),  the
highest grade held on active duty, rather than as sergeant (Sgt).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He should have been retired in the grade  of  SSgt  under  the  “Tower
Amendment.”  Now that his rank has been restored he is  receiving  pay
based on his retirement back in 1994, which punishes  him  again.   He
should be getting retired pay as a SSgt at today’s pay rate.  If he is
to be paid at the pay rate of 10 years ago, then he should receive the
back pay for that period.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

AFI 36-3203, Service Retirement, stipulates the following:

      7.2.3.   Enlisted members  of  the  Regular  or  Reserve  forces
retiring for other than disability retire in the  Regular  or  Reserve
grade held on the date of retirement unless entitled to a higher grade
under some other provision of law.

      7.4.     Advancing Regular Enlisted Members to  a  Higher  Grade
After 30 Years of Service:
      7.4.1.   Advancement on  the  Retired  List.   Regular  enlisted
members may, when their active service plus  service  on  the  retired
list total 30 years, be advanced (on the  retired  list)  and  receive
retired pay in the highest grade held on active  duty  satisfactorily,
as determined by the Secretary of the  Air  Force  (SAF)  or  designee
under Title 10, USC, Section 8964.

      7.6.3.   Preventing a Pay Inversion.  The Tower Amendment, Title
10, USC, Section 1401a(f), effective  7  Oct  75,  allows  DFAS-CL  to
compute retired pay on an earlier rate of basic pay if that  would  be
more favorable to the member.
      7.6.3.1. The member must have been retirement eligible when  the
earlier rate of basic pay was in effect.
      7.6.3.2. Only the amount of service and the grade  held  on  the
last date of the earlier rate may be used in the calculation.

      7.9.     Computing Retired Pay of a Member Involuntarily Reduced
in Grade.  Members retire in the grade held on the date of retirement.
 However, members eligible to retire on the  last  day  of  the  month
before the date of reduction may compute pay on the basic rate of  the
higher grade.  Compute retired pay based  on  the  amount  of  service
credited on the last day of the month before the  reduction.   Members
are eligible if:
      7.9.1.   The reduction was not due to court martial.
      7.9.2.   The member completed the active duty service commitment
in the higher grade.

The applicant enlisted in the Regular Air Force on 9 Jun 74.

On 17 Apr 80, the 33rd Aerospace Rescue & Recovery  Squadron  (33ARRS)
commander at Kadena AB, Japan, imposed Article 15  punishment  on  the
applicant in the form of 45 days of extra duty and  a  reduction  from
Sgt to airman first  class  (A1C),  suspended  until  15 Oct  80,  for
failing  to  go  to  his  appointed  place  of  duty  at  Clark   AFB,
Philippines, on 27  Jan  80.   The  applicant  had  presented  written
matters, but did not appeal.

On 6 Aug 80, the  commander  imposed  Article  15  punishment  on  the
applicant in the form of vacating the suspended reduction to  A1C  for
dereliction of duty in not contacting the 33ARRS  Maintenance  Control
while on standby on 13 Jul 80.  The applicant’s DOR for A1C was 17 Apr
80.  The applicant had made oral and written presentations, but it  is
not clear whether he appealed.

By AFBCMR action on 29 Dec 82, the applicant’s records were amended to
reflect that his suspended reduction from Sgt to A1C was  not  vacated
on 6 Aug 80 but remained in effect until 15 Oct 80, whereupon  it  was
complete.

By AFBCMR Roster action on 17 May 83, the applicant  was  promoted  to
the grade of SSgt effective and with a date of rank (DOR) of 1 Feb 81.


On 18 Jul 84, the Enlisted Performance Report (EPR) closing 18 Jul  84
was referred to the applicant with an overall rating of 8  out  of  9.
The rater referred to a confirmed discrimination complaint against the
applicant.  The applicant apparently did not submit a rebuttal and the
indorsers agreed with the rater.

On 11 Mar 87, the 4950th Organizational Maintenance Squadron (4950OMS)
commander at Wright-Patterson AFB  (WPAFB),  OH,  imposed  Article  15
punishment on the applicant in the form of forfeiture of $100  in  pay
per month for two months, 45 days of extra duty,  and  reduction  from
SSgt to Sgt, suspended until 6 Sep 87, for placing a  replica  of  the
Confederate flag on a rental car being driven by an  African  American
SSgt on 21 Feb 87 around Eglin AFB, FL.  The  applicant  had  made  an
oral presentation, and his subsequent appeal was denied.

On 10 Apr 87, the EPR closing 4 Apr 87 was referred to  the  applicant
with an overall rating of 7 out of 9.  The rater referred to a “racial
incident” while the applicant was on temporary duty  (TDY).   Although
the applicant submitted a rebuttal,  the  indorsers  agreed  with  the
rater.

On 5 Apr 88, the EPR for the period closing 4 Apr 88, was referred  to
the applicant with an overall  rating  of  6  out  of  9.   The  rater
commented on  the  applicant’s  poor  performance,  work  ethics,  and
relationship skills.  Although the applicant provided a rebuttal,  the
indorser agreed with the rater, referring to the  applicant  receiving
counselings and letters of reprimand for substandard  performance  and
behavior.

On 16 Nov 89, commander imposed Article 15 punishment on the applicant
in the form of reduction from the  grade  of  SSgt  to  Sgt,  with  an
effective date of 16 Nov 89, for dereliction of  duty  in  failing  to
properly transfer fuel on 1 Nov 89 at WPAFB.  The applicant made  oral
and written presentations, and his subsequent appeal was  denied.   At
this time, the applicant had approximately 15 years, 5  months  and  7
days of active service.

[NOTE:  Congress did not  authorize  The  Temporary  Early  Retirement
Authority (TERA) until 23 Oct 92, and implementation  after  enactment
was left up to the  service  secretaries.   Since  the  applicant  was
demoted prior to TERA’s enactment,  he  could  not  retire  under  its
provisions with 15-plus years of active service.  The Tower  Amendment
also does not apply to the applicant because, under its provisions,  a
member had to have 20 years of Total Active Federal  Military  Service
(TAFMS) as of the date of the demotion.]

Special Order No. AC-0211296, dated 7 Sep 93, indicated the  applicant
would be relieved from active duty on 30 Jun 94 and retired  effective
1 Jul 94 in the grade of Sgt.  The order also advised that,  effective
9 Jun 04, the applicant would be advanced on the USAF retired list  to
the grade of SSgt, the highest grade held on active duty, by reason of
completing a total of 30 years active service,  plus  service  on  the
retired list, on 8 Jun 04, under  the  authority  of  Title  10,  USC,
Sections 8964 and 8992.

On 1 Jul 94, after 20  years  and  22  days  of  active  service,  the
applicant was voluntarily and honorably retired in the  grade  of  Sgt
for maximum service for time in grade.

According to HQ AFPC/DPPRRP (Exhibit C), now that  the  applicant  has
been advanced to the grade of SSgt on the retired list  on  8 Jun  04,
his current retired pay will be calculated at 50%  (for  20  years  of
active service) times the final basic pay of a SSgt in 1994, with  the
additive of Cost of Living Adjustments (COLAs) since that  time.   His
retired pay will not be calculated using  the  basic  pay  tables  for
Calendar Year 2004 (CY04).

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRRP advises that, at the time of the  applicant’s  demotion
on 16 Nov 89, he had insufficient active duty  for  retirement.   They
cite applicable provisions of AFI  36-3203.   Although  the  applicant
believes the Tower Amendment applies to  him,  he  had  to  have  been
retirement eligible when he was demoted to have his previous  rate  of
basic pay considered for computation of his retired pay.  He  was  not
eligible for retirement when he was demoted on 16 Nov 89; he  did  not
yet have 20 years of TAFMS.  Therefore, denial is recommended.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asserts that, at the time of his demotion, the Air Force
was offering early retirements/outs.  He chose to stay  for  20  years
and receive all his benefits.  His advancement on the retired list  is
like a promotion and should be treated as such.  He should be  getting
paid at the current rank of a SSgt retiring today.  If  he  is  to  be
paid from 10 years ago, then he should receive pack pay for that.  Had
DPPRRP researched they would have  seen  he  was  eligible  for  early
retirement at the time.  [See  NOTE  in  Statement  of  Facts  section
above.]

A complete copy of applicant’s response is at 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 error or injustice.  After a thorough review  of  the
evidence of record and the applicant’s
submission, we are not persuaded he should be retired in  the  highest
grade held of SSgt, rather than Sgt.  When the applicant  was  demoted
from SSgt to Sgt on 16 Nov 89, he was not eligible for  retirement  as
he had approximately 15 years, 5 months and 7 days of  active  service
at the time.  Congress did not authorize the TERA until 23 Oct 92, and
implementation after enactment was left up to the service secretaries.
 Since the applicant was demoted prior to TERA’s enactment,  he  could
not retire under its provisions with 15-plus years of active  service.
The Tower Amendment also does not  apply  to  the  applicant  because,
under its provisions, a member had to have 20 years of TAFMS as of the
date  of  the  demotion.   Further,  contrary  to  his  opinion,   his
advancement on the retired list under the provisions of Title 10, USC,
Sections 8964 and 8992, is not a promotion and is not treated as such.
 We therefore agree with the recommendations  of  the  Air  Force  and
adopt the rationale expressed as the basis for our decision  that  the
applicant has not sustained his burden of having  suffered  either  an
error or an injustice.  In view of the  above  and  absent  persuasive
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought.

4.    The applicant’s case is adequately documented  and  it  has  not
been shown that a personal appearance with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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 16 and 27 December 2004 under the  provisions  of
AFI 36-2603:

                 Ms. Rita S. Looney, Panel Chair
                 Mr. Garry G. Sauner, Member
                 Mr. Gregory A. Parker, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-02624 was considered:

   Exhibit A.  DD Form 149, dated 16 Aug 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRRP, dated 13 Sep 04.
   Exhibit D.  Letter, SAF/MRBR, dated 24 Sep 04.
   Exhibit E.  Letter, Applicant, dated 6 Oct 04.




                                   RITA S. LOONEY
                                   Panel Chair