ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2010-02589

	  	COUNSEL:   

		HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

His disability retirement be changed to a length of service 
retirement.


RESUME OF CASE:

On 26 July 2011, the Board considered and denied applicant’s 
request to change his disability retirement to a length of 
service retirement.  The applicant argued he was denied a length 
of service retirement and forced to accept a disability 
retirement, which resulted in his receiving a reduced amount of 
retired pay.  After a thorough review of the evidence of record, 
the Board found the evidence was not sufficient to conclude the 
applicant was somehow precluded from submitting a request for a 
length of service retirement.  Furthermore, it was uncertain if 
he was actually denied the opportunity to elect a length of 
service retirement or he made a choice he later regretted.  For 
an accounting of the facts and circumstances surrounding the 
rationale for the earlier decision by the Board, see the Record 
of Proceedings at Exhibit E (with Exhibits A through D).

On 25 February 2014, the applicant filed suit in the United 
States District Court of Federal Claims.  On 5 March 2014, the 
Court remanded the case to the Board for reconsideration with 
instructions to consider that the Air Force Board for Correction 
of Military Records (AFBCMR) failed to apply 10 U.S.C. §1401(b) 
to his retirement application and any other matters the 
applicant presents in writing regarding his retirement 
(Exhibit F). 


AIR FORCE EVALUATION:

AF/JAA recommends denial noting 10 U.S.C. §1409(a)(1)(A), 
prohibits using §1401(b) for calculating the retired pay of 
service members who are disability retired under Chapter 61.

Under 10 U.S.C. §1201, the service Secretary may retire a 
service member, with retired pay computed under 10 U.S.C. §1401, 
when a service member is unfit to perform the duties of his 
office, grade, rank, or rating due to a disability.  Title 10 
U.S.C. §1401(a) limits the maximum percentage for a physical 
disability retirement to 75 percent.  The 75 percent cap equates 
to a 30-year career and only affects service members who retire 
for a disability after more than 30 years of service.

The applicant argues that federal law requires that he be paid 
at a higher percentage of active duty pay than that prescribed 
in 10 U.S.C. §1401(a).  He believes he is entitled to a higher 
percentage for retired pay for a length of service retirement 
per 10 U.S.C. §8918.  He further believes his percentage should 
be close 80 percent, based on his over 31 years of active 
service.

Title 10 U.S.C. §1401(b) describes the use of the most favorable 
formula for calculating retired pay.  If a person would 
otherwise be entitled to retired pay computed under more than 
one formula of the table in subsection (a) or of any other 
provision of law, the person is entitled to be paid under the 
applicable formula that is most favorable to him.

However, according to AF/JAA, the most favorable formula 
provision in §1401(b) does not entitle a service member who 
receives a disability retirement to the more generous retirement 
formula for a longevity retirement under §8918.

In the present case, the member is attempting to obtain the more 
generous retired pay multiplier contained at 10 U.S.C. 
§1409(b)(3)(B), which states:

	“(B) Retirement after December 31, 2006-In the case of a 
member who retires after December 31, 2006, with more than 
30 years of creditable service, the percentage to be used under 
subsection (a) is the sum of-

	(i) 75 percent; and

	(ii) the product (stated as a percentage) of-

		(I) 2 1/2; and

		(II) the member's years of creditable service (as 
defined in subsection (c)) in excess of 30 years of creditable 
service, under conditions authorized for purposes of this 
subparagraph during a period designated by the Secretary of 
Defense for purposes of this subparagraph.”

The retired pay multiplier in §1409 is not available to service 
members through the most favorable formula in §1409(b) because 
it is prohibited by §1409(a)(1)(A), especially for those service 
members who are entitled to retired pay under Chapter 61 of 
Title 10 U.S.C.  In addition, §1401(a), formula number 5, does 
not provide a retirement calculation using §1409 and excludes 
using this formula for §1201 disability retirements.

A complete copy of the AF/JAA evaluation is at Exhibit G.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states the advisory opinion is incorrect and to narrowly 
focuses on one provision of the statute.  When read together the 
statutes mandate the applicant’s retirement pay should be based 
on his over 31 years of service, without penalty for his 
disability.  If the advisory opinion is correct, then the 
applicant is being penalized by receiving less retirement pay 
because he incurred a minor injury while on active duty.  
Penalizing an individual who is otherwise eligible for a length 
of service retirement is arbitrary and capricious, and is 
contrary to the express purpose of Congress that a disabled 
service member’s retirement pay be calculated under the formula 
or other provision of law most favorable to that service member.

The applicant is entitled to retirement under 10 U.S.C. §8918, 
which provides that a regular commissioned officer of the Air 
Force who has at least 30 years of service computed under §8926 
may be retired upon his request.  At the time of the applicant’s 
injury, he requested retirement and was eligible for retirement 
based on his more than 30 years of service.  Nonetheless, he was 
mandatorily processed for disability retirement and in response 
to his petition to the AFBCMR an advisory opinion stated, that 
the applicant could not waive disability processing because he 
served at the discretion of the President and may be recalled.  
Title 10 U.S.C. §688 excludes officers retired on early 
retirement from recall, it does not preclude recall on officers 
with 30 plus years of service who retired on disability.  
Therefore, the recall statute is not a bar to a retirement under 
§8918.  Furthermore, there is no statutory authority that 
mandated the Air Force to retire the applicant for disability.

Section 1401(b) states if a person would otherwise be entitled 
to retired pay computed under more than one formula under 
subsection (a) of 1401 or any other provision of law that person 
is entitled to be paid under the formula that is most favorable 
to him.  Therefore, the applicant is entitled to retired pay for 
his over 30 years of service with retired pay calculated near 
80 percent rather than the 75 percent cap for a disability 
retirement.

While the most favorable formula is found in §1409(a) and 
§1401(a) of Title 10 U.S.C., the advisory focused on using the 
most favorable formula number 5 of §1401 and excluded the use of 
it in §1409(a)(1)(A).  Under §1409(a), a person is entitled to 
that pay under any provision of law, except for a person 
entitled to retirement pay under disability, non-regular, or 
Fleet Reserve statutes.  Section 1409(a) is in harmony with 
§1401 and §8918 if it covers persons entitled to retired pay 
under any provision of statute or law except for persons only 
entitled to retirement under disability, non-regular, or Fleet 
Reserve statutes.  If read any other way §1409(a) will negate 
§8918 and §1401, but nothing in §1409(a) precludes an individual 
from being entitled to retirement under both the disability and 
any other statute.  It also appears under §1401(b) an individual 
may be entitled to retirement pay under the formulas under 
§1401(a) and any other provisions of law.

The retired pay for individuals who retired under the disability 
statute pay is capped at 75 percent.  However, §1409(b)(3) lifts 
the 75 percent cap for individuals who retired with over 30 
years of service.  Formula number 5 under §1401 incorporates the 
multiplier of §1409(a) to calculate retired pay for disabled 
individuals.  However, §1401(b) recommends using the most 
favorable formula.

Since the applicant was entitled to retired pay under more than 
one statute, his retired pay should have been calculated under 
the formula most advantageous for him.  His entitlement to a 
retirement based on his over 30 years of service should not have 
been disregarded because of he had a disability.

The advisory opinion stages an unnecessary conflict between two 
statutes, §1409(a)(1)(A) and formula number 5 of §1401(a) by 
acknowledging formula number 5 references the §1409(a) 
multiplier but also noting that §1409(a)(1)(A) putatively 
excludes use of that formula.  The principle used to resolve a 
conflict between two statutes is that the specific statute 
governs over the statute with general language.

If §1409 is the appropriate statute to follow then §1401(a) and 
(b) are meaningless, which is not in accordance with law.  
Statutes should be construed to avoid rendering superfluous 
statutory language.  Therefore, §1409(a)(1)(A), formula number 5 
is not the answer because that would make §1401(a) formula 
number 5 superfluous.

A reading of the statutes provides that a disabled individual 
who has more than 30 years of service is entitled to the higher 
multiplier of §1409(b)(3), which would be in line with Congress’ 
intent to use the most favorable formula or law.

Congress’ intention was for a disabled service member’s retired 
pay to be calculated using the most favorable formula to the 
service member.

Counsel’s complete response is at Exhibit I.


THE BOARD CONCLUDES THAT:

1.  After again reviewing the applicant’s request to have his 
retired pay computed under the more favorable formula in 10 USC 
Section 8918 (length of service), rather than 10 USC Section 
1201 (physical disability), we are not convinced that the 
applicant’s retired pay was calculated improperly.  While we 
note Counsel’s many legal arguments intended to undermine the 
Air Force’s interpretation and application of the governing 
statutes in effect at the time of the applicant’s retirement, we 
note that this Board is not a court.  The Board does not resolve 
questions of law and must therefore rely on the opinions of 
those offices within the Air Force whose charter is to interpret 
statutes.  We therefore accept the recommendations provided by 
AF/JAA and adopt its rationale as the basis for our conclusion 
that the applicant’s military retired pay was computed 
appropriately in accordance with the governing statutes and Air 
Force policy.

2.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an injustice.  In 
this respect, we note that while the applicant has not brought 
forth evidence indicating that he was somehow miscounseled or 
deprived of the opportunity to elect a length of service 
retirement over a disability retirement, we find it reasonable 
to conclude that had the applicant clearly understood that the 
implications of choosing a disability retirement over a length 
of service retirement would have resulted in a reduced retired 
pay multiplier, he would have likely elected to discontinue his 
processing under the disability evaluation system (DES) and 
apply for a length of service retirement.  Therefore, we believe 
it is in the interest of justice to correct the applicant’s 
records to reflect that he retired under length of service rules 
rather than for physical disability.  However, as the law 
requires that those retiring for length of service do so on the 
first of the month, we also recommend his records be corrected 
to reflect that the effective date of his retirement be 
1 September 2009, instead of 29 August 2009.

3.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that he did 
not retire on 29 August 2009 under the provisions of Title 10, 
United States Code (U.S.C.), Section 1201 (physical disability), 
but continued to serve on active duty until 31 August 2009, when 
he was relieved from active duty and retired, effective 
1 September 2009, under the provisions of Title 10, U.S.C., 
Section 8918 (length of service).


The following members of the Board considered AFBCMR Docket 
Number BC-2010-02589 in Executive Session on 2 Oct 14, under the 
provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 

All members voted to correct the records as recommended.  The 
following documentary evidence was considered:

	Exhibit E.  Record of Proceedings, dated 19 Dec 11, 
	            w/Exhibits.
	Exhibit F.  US Court of Federal Claims Remand Order, 
	            dated 5 Mar 14.
	Exhibit G.  Letter, AF/JAA, dated 1 Aug 14.
Exhibit H.  Letter, SAF/MRBR, dated 15 Aug 14, w/atch.
Exhibit I.  Letter, Counsel, dated 12 Sep 14.