RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2006-00382
                 INDEX NUMBER: 128.00; 133.03

                 COUNSEL:  NONE

                 HEARING DESIRED:  NO

MANDATORY COMPLETION DATE: 11 AUGUST 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

His retired military pay be corrected to the High-36 plan under  which
he enlisted.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In accordance with DoD Financial Management Regulation Vol 7B, Chapter
030112, B. Special Rule for enlisted member's states, "if  the  member
is subsequently promoted to a higher grade, the member's  retired  pay
will be computed using a High 36-month average".

In  support  of   his   request,   applicant   provide   a   promotion
recommendation  letter,  Retirement  Special  Order  #002260  and  DoD
Financial Management Regulation Vol 7B, Chapter 3, dated August 2005

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the regular Air Force on 5  April  1984  and
was progressively promoted to the  rank  of  staff  sergeant  with  an
effective date rank of 1 June 1990.

On 1 February 1999, the applicant's promotion  to  technical  sergeant
(TSgt/E-6) was withheld due to a referral enlisted performance  report
(EPR).

On 11 July 2000, the referral report  was  removed  by  order  of  the
AFBCMR and his date of rank to TSgt  was  established  as  1  November
1998.

On 18 December 2000, the applicant  was  administratively  demoted  to
SSgt with a reduction to airman first class (AlC/E-3) suspended  until
26 May 2002. The suspension was vacated on      27 November  2001  and
the applicant was demoted to AlC. On 27 July 2003, the  applicant  was
promoted to senior airman (SrA) and retired in that grade effective  1
May 2004.

On 18 December 2003, the Secretary of the Air Force  (SAF)  determined
the applicant did not serve satisfactory in any higher grade than  his
retired grade and that he would not be advanced under  Title  10,  USC
Section 8964.

The applicant was retired on 1 May 2004 in  the  grade  of  SrA  after
serving 20 years, 4 months  and  25  days  of  total  active  military
service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial. The applicant was demoted from SSgt  to
AlC on 27 November 2001 and was not promoted  to  SrA  until  27  July
2003. The applicant's Date Initially Entered Uniformed Service (DIEUS)
data is 6 December 1983. The applicant retired  on  1  May  2004.  The
member's High-36 extends from 1 May 2001 to      30  April  2004.  The
applicant was demoted and  retired  within  three  years  having  been
demoted, so Title 10 USC, Section 1407 (f)(3) applies. This law states
that rates of basic pay used in the  computation  of  the  applicant's
High-36 average for the period of the applicant's service in  a  grade
higher (SSgt) had been serving for that period (when the applicant was
a SSgt) in the grade in which retired (SrA). What this means is  that,
although the member held the grade of SSgt from 1 May 2001  until  his
demotion on    27 November 2001, his High-36 is being computed  as  if
he had been a SrA, his retired grade, for that period of time.

Although the applicant quotes the DoD Financial Management  Regulation
(FMR) as justifying why he should be receiving High-36  that  includes
his time as a SSgt, his highlight of the  special  rule  for  enlisted
members did not include the sentence (FMR, V7B, 030112(B))  pertaining
to his case: "The computation will use the final 36  months  of  basic
pay, except for the months in which the member  served  in  the  grade
higher (SSgt) than the grade in which retired (SrA). The basic pay for
such months shall be the rates that would have applied to  the  member
at that time if serving in the grade in which retired (SrA). So,  from
1 May 2001 until  27  November  2001,  the  basic  pay  used  for  the
applicant's High-36 was as a SrA and not SSgt.

AFPC/DPPPRRP's complete evaluation is at Exhibit C.

DFAS stated after the applicant was placed on the  retired  list,  his
retired pay account was established using the final basic pay  formula
based on  the  assumption  he  had  been  demoted  to  SrA.  With  the
submission of the Correction  Board  Application,  it  was  noted  the
retired pay had  been  incorrectly  computed  and  that  he  had  been
overpaid. In accordance with Title 10, USC,  Section  1407(f)(3),  the
applicant's retired pay should  have  been  computed  under  the  high
average method using 36 months of basic pay as a  SrA.  The  applicant
has  been  notified  of  the  debt  and  collection  action  has  been
initiated.  The applicant's retired  pay  is  now  correctly  computed
using the high average method, no correction is required.

DFAS's complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluations and  stated  he  believes
his initial retirement pay was calculated using his final pay as an E-
4. In February 2006,  he  requested  DFAS  Cleveland  review  his  pay
records because he believed his pay should have been calculated  under
the High-36 plan. The reason he believes his pay should be this way is
because he read the DoD FMR V7B, Chap 3, it stated  "if  a  member  is
subsequently promoted to a higher enlisted grade, the member's retired
pay will be computed using a high-36 month  average  computation".  In
   April 2006 DFAS reviewed his pay records  and  concluded  that  his
retired pay was in error and should be based on  his  final  36  month
average. He tried to explain  to  DFAS  that  if  they  interpret  the
regulation that way, they will penalize the  member  who  subsequently
gets promoted. He understands that in most cases the final  36  months
will be the highest however; in his case this is not  true.  This  re-
computation caused a significant decrease in pay  and  subsequently  a
debt which is currently being deducted from his pay. As  a  result  of
this debt, he had to apply for a waiver from  DFAS.  He  received  the
attached letter from DFAS Denver in June 2006 which states  that  DFAS
believes his pay should be calculated under the High-36 plan also.

He is aware that because of demotions that his pay will not be a  true
High-36 nor final grade pay but his lowest 36 months of pay. He  can't
find anywhere it states the member should receive his lowest 36 months
of pay.

Applicant's complete response, with attachment, is at Exhibit F.

_________________________________________________________________

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 an error or injustice.  It  is  the  opinion  of  the
Board that the error in the applicant’s retirement pay records,  which
led  to  his  overpayment,  was  not  a   result   of   any   act   or
misrepresentation on his part.  In this  regard,  the  Board  believes
that the final basic pay formula computation was correct, however,  it
was computed in the grade of SSgt rather than Sra which resulted in an
overpayment.  The Board believes that  DFAS  should  have  made  every
reasonable effort to ensure his pay records were accurate and that the
errors in his records were not his fault,  but  that  of  the  finance
technicians.  Accordingly, the board recommends that  his  records  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 on 30 April  2004  he
applied for  remission  of  his  debt  of  $3315.00  arising  from  an
overpayment of retirement pay, and remission of this debt was approved
by competent authority.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2005-00382 in  Executive  Session  on  15  November  2006,  under  the
provisions of AFI 36-2603:

      Ms. BJ White-Olson, Panel Chair
      Mr. Wallace F. Beard Jr., Member
      Mr. Patrick C. Daugherty, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2006-00382.

   Exhibit A.  DD Form 149, dated 14 Aug 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRRP, dated 28 Feb 06
   Exhibit D.  Letter, DFAS, dated 26 May 06.
   Exhibit E.  Letter, SAF/MRBR, dated 28 Sep 06.
   Exhibit F.  Applicant’s Response, dated 23 Jun 06




                                   BJ WHITE-OLSON
                                   Panel Chair





AFBCMR BC-2006-00382





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 APPLICANT, be corrected to show that on 30 April
2004 he applied for remission of his debt of $3315.00 arising from an
overpayment of retirement pay, and remission of this debt was approved
by competent authority..






                             JOE G. LINEBERGER
                             Director
                             Air Force Review Boards Agency