RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-02212

		COUNSEL:  NONE

		HEARING DESIRED:  NO 


________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect his retired pay was 
calculated based on the hi-three average.

________________________________________________________________

APPLICANT CONTENDS THAT:

The Defense Finance and Accounting Service (DFAS) calculated his 
retired pay incorrectly based on the average of his high 36 
months of pay for active duty.  He received a Reserve retirement 
and his retired pay should have been calculated under Title 10 
USC, §12731.  Service members who retired under §12731 were 
exempt under §1407(c)(1).

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

________________________________________________________________

STATEMENT OF FACTS:

On 24 Jun 83, the applicant commenced his enlistment in the Air 
Force Reserve.

On 18 Dec 03, the applicant was notified of his eligibility to 
receive retired pay upon reaching age 60 (17 Mar 13).

On 30 Sep 05, the applicant was released from active duty and 
transferred to the Retired Reserve List to await retired pay at 
age 60 under the provisions of Title 10 USC §12731.

On 27 Dec 11, the applicant received notification indicating 
that according to the 2011 pay scale his gross monthly retired 
pay would be $1,842.23  

On 29 Feb 12, the applicant received notification indicating 
that according to the 2012 pay scale his gross monthly retired 
pay would be $1,872.30.

On 3 May 13 and 29 Jul 13, the applicant received notification 
indicating that according to the 2013 pay scale his gross 
monthly retired pay would be $1,904.03. 

The applicant retired on 7 Mar 13 and was credited with 
22 years, 3 months, and 6 days of satisfactory reserve service 
for retired pay.

On 10 Jan 14 and 15 Feb 14, the applicant received notification 
indicating that according to the 2014 pay scale his gross 
monthly retired pay would be $1,923.10.

Title 10 USC §1407(c)(1), indicates retired pay is calculated 
based on the 36 month average for individuals who entered 
military service after 7 Sep 80; however, individuals who 
retired under §12731 are exempt from retired pay being 
calculated based on the high 36 month average. 

Under the provisions of Title 10 USC §1407(d)(1)(A)(B), former 
service members who are entitled to retired pay under §12731 of 
this title will be entitled to an amount equal to the total 
monthly amount of basic pay to which the former member was 
entitled during the their high 36 months, divided by 36.

The remaining relevant facts pertaining to this application are 
described in the letters prepared by the Air Force offices of 
primary responsibility, which are attached at Exhibit C and F.    

________________________________________________________________

AIR FORCE EVALUATION:

DFAS-JBJE/CL recommends denial indicating there is no evidence 
of an error or an injustice.  The applicant was placed on the 
military retired rolls on 17 Mar 13, when he turned 60.  His 
RCSBP election was considered invalid since his election form 
was signed in Jan 04 and not prior to the 90 day suspense as 
indicated on his 20 year letter.  Therefore, the RCSBP was 
established with automatic spouse and child coverage upon his 
retirement.

As for his request related to his retired pay, a review of the 
applicant’s records reveal his retired pay calculation is 
correct.  His retired pay was calculated based on the hi-three 
average. 

A complete copy of the DFAS-JBJE/CL evaluation, with 
attachments, is at Exhibit C.

________________________________________________________________




APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He was placed in the retired reserve with an effective date of 
30 Sep 05, not 17 Mar 13.  He retired under the provisions of 
Title 10, USC, §12731.  His retired pay should not have been 
calculated using the hi-three average because those individuals 
who retired under 10 USC 12731 are exempt from retired pay being 
calculated based on the hi-three average.

According to documents he received from ARPC his gross monthly 
retired pay should be $1,904.03 and not $1813.00.

The applicant’s complete responses, with attachments, are at 
Exhibit E.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

DFAS-JBJE/CL recommends denial of the applicant’s request 
regarding the calculation of his retired pay indicating there is 
no evidence of an error or injustice.  The letters the applicant 
received from AFPC/DPPTR were intended to provide the applicant 
an approximate gross monthly pay based on the current pay scale.  
This estimate was based on using the current pay scale not the 
total amount of monthly basic pay divided by 36 months.  The 
applicant was [later] provided the correct computation for his 
retired pay at the time of retirement.  Since the applicant 
entered the service after 7 Sep 80, his retired pay was computed 
using the high three average of the member’s amount of monthly 
basic pay that he was entitled during his high 36 months divided 
by 36. 

A complete copy of the DFAS-JBJE/CL evaluation, with 
attachments, is at Exhibit F.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

His retired pay should not have been calculated under the hi-
three average used by DFAS because he was separated on 25 Sep 05 
before the law became effective for using the hi-three average.  
Furthermore, his medical records establish that he should have 
received a disability retirement in Sep 05 instead of being 
transferred to the Retired Reserve to await retired pay in 
Mar 13.

The applicant’s complete responses, with attachments, are at 
Exhibit H.

________________________________________________________________


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 an error or injustice.  We took 
notice of the applicant’s complete submission, to include his 
rebuttals, in judging the merits of the case; however, we do not 
find the applicant’s arguments or the documentation presented 
sufficient to conclude that his retired pay was calculated 
incorrectly.  While the applicant makes a variety of legal 
arguments indicating that his retired pay was computed 
incorrectly and provides a variety of letters he received 
indicating that his retired pay would be higher, we are not 
convinced that these letters, which represent estimates of his 
retired pay in advance of his retirement, support granting the 
relief he seeks.  In this respect, we note these type estimates 
are generally provided to military members similarly situated 
and that members who receive these estimates are duly warned 
that they are estimates and do not constitute a determinative 
commitment that such a member will receive the level of pay 
estimated.  Additionally, we note the applicant’s argument that 
his retirement pay should have been exempt from the high 36 
average due to his 100% service connected disability.  However, 
we find the evidence submitted is insufficient to support 
granting relief on that basis.  Therefore, in the absence of 
evidence to the contrary, we find no basis to recommend granting 
the requested relief.  

4.  We note the applicant’s argument in his latest rebuttal that 
he should have been retired for physical disability in Sep 05; 
however, as this constitutes a new request separate and aside 
from the matter under review, in order to have this matter 
considered, he must submit a new DD Form 149 bearing his 
signature, accompanied by evidence in support of his request for 
a disability retirement for consideration by the AFBCMR.

________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2013-02212 in Executive Session on 10 Jun 14, under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-02212 was considered:

	Exhibit A.  DD Form 149, dated 4 May 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, DFAS-JBJE/CL, dated 28 May 13, w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 21 Jun 13.
	Exhibit E.  Letter, Applicant, dated 28 Jun 13, w/atchs.
	Exhibit F.  Letter, DFAS-JBJE/CL, dated 17 Apr 14, w/atchs.
	Exhibit G.  Letter, SAF/MRBR, dated 9 May 14.
	Exhibit H.  Letters, Applicant, dated 16 May 14 and
	            18 Aug 14 w/atchs.