RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01854
            INDEX CODE:  131.09, 135.02

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show the retired grade of major general (0-
8) and that he be granted service credit  for  all  retirement  points
earned from 12 May 2000 to 24 April 2003.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He retired from the Massachusetts Air National Guard  (MAANG)  in  the
grade  of  major  general  (MG),  effective  24  April  2003  and  was
transferred in that grade to the Retired Reserve after  over  45 years
of enlisted  and  commissioned  service.   In  October  2002,  he  was
federally recognized by Senate confirmation in the grade of MG with  a
date of rank (DOR) of 31 March 2001.  On 24 April  2003,  he  attained
the age of 64.  Under federal law (10 USC  14512),  Adjutant  Generals
(AGs) must retire when they reach the age of 64.

He had returned to service as the Adjutant General at the  request  of
the governor to help restore confidence and integrity  in  the  MAANG.
The previous AG had resigned under a cloud  of  scandal.   As  he  had
reached his maximum age of service, he applied  for  retirement  as  a
Reserve of  the  Air  Force  and  he  was  retired  in  his  federally
recognized grade of MG.  While serving as the AG he had forfeited  the
retired pay to which he was then eligible as the result of his initial
retirement in 1999 as a brigadier general (BG).  He was not subject to
a retirement grade determination or  any  other  adverse  action  that
would have affected his eligibility for retired pay at the  MG  level.
On 8 April 2003, the Air Reserve Personnel Center (ARPC) confirmed  he
would be retired at the grade of MG and be given full point credit for
his service  as  the  AG.   He  has  met  all  statutory  requirements
qualifications for retirement in the grade  of  MG  and  to  have  his
military service credited toward retirement.

The ARPC interpretation of computing retired pay under 10 USC 1402  as
holding that federal law does not recognize full time  National  Guard
duty as “active service” is a far too narrow distinction  that  causes
both a significant hardship and manifest injustice for the few retired
officers who chose to return  to  full-time  National  Guard  duty  in
periods of grave national crises.  He contends Section 1402  does  not
specifically exempt National Guard or Reserve officers,  nor  does  it
exclude full-time National Guard duty  as  “active  service”  for  the
purpose of retirement calculations.  If Congress had intended  Section
1402 to not apply to National Guard/Reserve of the Air Force  officers
or full-time National Guard duty, it would have specifically  exempted
these elements from the law’s provisions.

The ARPC interpretation improperly adds other required  qualifications
not intended by Congress to his entitlement to  retire  in  grade  and
with full retirement credit for his military service.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement, and 15 attachments  including  copies  of  Reserve  orders,
correspondence  with  ARPC  and  other  documents  pertinent  to   his
application.

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

_________________________________________________________________

STATEMENT OF FACTS:

A review of his record  indicates  the  applicant  retired  under  the
provisions of Title 10, United States Code (USC), Section 12731 on  24
April 1999, which also happened to be his 60th birthday.   He  retired
in the grade of BG.  On 12 May 2000, the Secretary of  the  Air  Force
(SECAF) approved his assignment to  the  Ready  Reserve,  and  he  was
subsequently appointed as the AG of the MA National Guard (NG) in  the
grade of MG.  He received federal recognition as  a  MG  on  1 October
2002.  He served as the MA AG until he retired again on 24 April 2003;
which happened to be his 64th birthday.

When he again applied  for  retired  pay,  effective  24  April  2003,
ARPC/DPPR (Retirements) recomputed his service  and  published  a  new
retired  pay  order  crediting  him  with  the   additional   service,
retirement points, and the higher grade of MG.  ARPC/DPPR accomplished
the new order based on an ARPC/JA opinion that noted the applicant was
authorized to receive such.  The order was sent to the Defense Finance
and Accounting Service  (DFAS)  who  processed  the  “new”  order  and
recomputed his pay based on the additional points and  higher  retired
grade.

In February 2006, DFAS again reviewed his account and questioned  ARPC
as to the legality  of  crediting  him  with  additional  service  and
enhanced grade following payment of Reserve retired pay.   ARPC  again
reviewed the case and determined the applicant  was  not  entitled  to
have the retired pay recalculated based on  service  and  a  grade  he
acquired after he initially retired in 1999.  Their decision was based
on  two  Comptroller  General  Opinions  (CGO’s)  brought  to   ARPC’s
attention by DFAS.   The  CGO’s  deny  the  authority  for  a  member,
previously retired and in receipt of retired pay to “re-retire” and be
credited for time served and a higher grade acquired after retirement.
 Therefore, his “new” retired pay order had to be  rescinded  and  his
original 1999 retired pay date was re-established.  ARPC informed  him
of this change on 9 March 2006.

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AIR FORCE EVALUATION:

ARPC/DPP recommends  denial.   DPP  contends  that  since  Comptroller
General Decisions are controlling, ARPC  had  no  recourse  except  to
rescind the applicant’s 2003 retired pay  order  and  notify  DFAS  to
adjust his retired pay to the 1999 date.

DPP’s complete evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
21 July 2006 for review and comment within 30 days.  As of this  date,
this office has received no response.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommends denial.  JAA states the applicant’s assertions,
though sincere, are conclusory and  do  not  overcome  the  conclusive
application of the pertinent Comptroller General decisions, which  are
binding on DoD and the Air Force in matters of fiscal law.

JAA’s complete evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation  was  forwarded  to  the
applicant on 27 November 2006 for review and comment within  30  days.
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 timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the basis for our conclusion that  the  applicant  has  not  been  the
victim of an error or injustice.  It appears the  actions  taken  were
appropriate based  on  the  previous  Comptroller  General  decisions.
While we are not unsympathetic, we are not persuaded by  the  evidence
presented that the actions were erroneous or  unjust.   Therefore,  in
the absence of  persuasive  evidence  to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

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   issues   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 AFBCMR Docket Number BC-
2006-01854 in Executive Session on 27 July 2007, under the  provisions
of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Patricia J. Zarodkiewicz, Member
      Mr. J. Dean Yount, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Jun 06, w/atchs.
    Exhibit B.  Letter, ARPC/DPP, dated 12 Jul 06, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 21 Jul 06.
    Exhibit D.  Letter, USAF/JAA, dated 16 Nov 06.
    Exhibit E.  Letter, SAF/MRBC, dated 27 Nov 06.




                                   THOMAS S. MARKIEWICZ
                                   Chair