RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-03610
		INDEX CODE:  108.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He receive fair remuneration for his unsold leave, possibly beyond 30 days.

He receive fair remuneration for the time he remained confined to a Department of Veterans Affairs (DVA) hospital, and the five months he was unable to work after his release.

By amendment, his disability rating be changed from 30 percent to 35 percent.

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APPLICANT CONTENDS THAT:

He was not given the opportunity to take terminal leave.

While he was in the DVA hospital, he was unable to work and his pay was cut in half to a third of what it was.

In support of his appeal, the applicant provided an expanded statement.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Air Force Reserve on 15 Jun 74 in the grade of airman basic.  He enlisted in the Regular Air Force on 25 Jul 77 in the grade of senior airman for a period of four years.

On 23 Sep 88, an MEB was conducted and rendered a diagnosis of schizophreniform disorder, acute, severe, marked by delusions of persecution, paranoid ideation, inappropriate affect and loss of sense of self, with deterioration from a previous level of functioning and progressive withdrawal  The MEB recommended that the applicant’s case be referred to an Physical Evaluation Board (PEB).  It also indicated that nonmilitary hospitalization was required.

On 27 Oct 88, an Informal Physical Evaluation Board (IPEB) convened and rendered a diagnosis of schizophreniform disorder, acute, severe, with considerable impairment of social and industrial adaptability.  The IPEB found that the applicant was unfit because of physical disability, that the disability was incurred while the applicant was entitled to receive basic pay, that the disability was incurred in the line of duty, that the disability was ratable under VA Diagnostic Code 9205 at 50 percent, and that the disability might be permanent.  The IPEB recommended temporary retirement.  

On 3 Nov 88, the applicant agreed with the findings and recommended disposition of the PEB.

Applicant was relieved from active duty and his name was placed on the TDRL, effective 28 Nov 88, in the grade of master sergeant.  He was credited with 14 years, 4 months, and 17 days of active duty service.

On 28 Mar 90, an Informal Physical Evaluation Board (IPEB) convened and rendered a diagnosis of schizophreniform disorder with considerable impairment of social and industrial adaptability.  The IPEB found that the applicant was unfit because of physical disability, that the disability was incurred while the applicant was entitled to receive basic pay, that the disability was incurred in the line of duty, that the disability was ratable under VA Diagnostic Code 9205 at 50 percent, and that the disability might be permanent.  The IPEB recommended that the applicant’s name be retained on the TDRL.  

On 12 Jul 91, an Informal Physical Evaluation Board (IPEB) convened and rendered a diagnosis of schizophreniform disorder, depressed type, in remission, with definite impairment of social and industrial adaptability.  The IPEB found that the applicant was unfit because of physical disability, that the disability was incurred while the applicant was entitled to receive basic pay, that the disability was incurred in the line of duty, that the disability was ratable under VA Diagnostic Code 9205 at 30 percent, and that the disability might be permanent.  The IPEB recommended permanent retirement.  

On 6 Aug 91, the Secretary of the Air Force directed that the applicant’s name be removed from the TDRL under the provisions of 10 USC 1210(c) and permanently retired, effective 16 Aug 91.

A DD Form 215, dated 10 Sep 02, indicates that the applicant’s records have been corrected administratively to reflect award of the Meritorious Service Medal (MSM).

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AIR FORCE EVALUATION:

The Medical Consultant recommended denial as to any change in retirement disability levels, indicating that it appears the level at which the permanent disability retirement was determined was appropriate for the degree of impairment found at the applicant’s final TDRL evaluation in May 91, a level that reflected his improved status and functionality as noted in his ability to pursue full-time college study and to function well in his social environment.  Disability compensation is based on the current status of the individual at the time of final disposition, and no error or injustice was found that would warrant a higher level of compensation at the time of his permanent disability retirement determination. If, in the interim, the DVA has found it appropriate to increase or lower this level, it is within their charter to do so depending on changes in his psychological status.  This does not, however, imply that such changes should have been effective at the time of his final disposition from the military.

A complete copy of the Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommended denial, indicating that a review of the disability processing records does not show any variances from normal procedures for a member in the Air Force Disability Evaluation System (DES).  Service members who undergo processing through the DES are not authorized terminal leave like other military retirees.  The policy for taking leave at that time, and the policy still in effect, is that if an individual has not previously sold 60 days of accrued leave after 10 Feb 76, he or she must sell the leave at separation or retirement.  Those members retiring or separating for disability purposes may only use accrued leave that they cannot sell back (anything over 60 days).  A review of the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, revealed that he was paid for 65 days of accrued leave at the time he was released from active duty.  This leads them to believe that some unusual circumstances may have occurred during this period to waive the 60 days ruling.  Since their office is not a pay or leave authority, they cannot determine why an exception to policy was made for the member which allowed him to sell in excess of 60 days of leave during his military career.

AFPC/DPPD stated that they are unaware of any directives that stipulate that a member should be additionally monetarily compensated from the military service for periods while hospitalized in a veteran’s hospital and for periods of unemployment following his release from active duty, other than for normal service and disability retirement benefits.

AFPC/DPPD stated that following their examination of the files, they determined the applicant was treated fairly throughout the military disability evaluation process, that he was properly rated under federal disability guidelines, and that he was afforded a full and fair hearing as required under military disability laws and policy.  Based on the above information, they find no rationale why he should receive additional monetary payments for periods addressed following his release from active duty.  The care for veterans once they leave active duty falls underneath the responsibility and charter of the DVA under Title 38, United States Code (USC).  The medical aspects of this case are fully explained by the Medical consultant and they agree with his advisory.

A complete copy of the AFPC/DPPD evaluation at Exhibit D.

AFPC/DPSFM reviewed this application and noted that a 26 Sep 86 memorandum from the Office of the Assistant Secretary of Defense for Professional Affairs and Quality Assurance clarified the leave policy for disability separations and retirement during the period the applicant retired.  It states, “individuals who have accrued leave in excess of 20 days and who cannot sell it back to the government may be allowed to use it.”  According to AFPC/DPSFM, the applicant clearly sold the maximum of 60 days of leave upon his retirement and should have been afforded the opportunity to take the remaining eight (8) days as terminal leave.

A complete copy of AFPC/DPSFM evaluation, with attachments, is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided a response, indicating that the two main points of his complaint have been ignored and described as unclear.  A highly inflammatory communication was sent to the medical evaluation board without his knowledge.  He should have been given the opportunity to respond.  This right is vital if the integrity of the system is to be believed.

As previously stated, he was moved directly from Travis AFB to a DVA hospital while still on active duty.  He was still in the hospital when he was placed on the TDRL.  This was an untenable situation that could only be confirmed if his DVA records are requested.  At the very least, he should have remained on active duty until he was released from the hospital.  

Regarding his leave situation, the applicant indicated that his DD Form 214 showing he sold 65 days of leave at his separation is inaccurate.  In fact, he accrued 65 days of leave, of which 30 days were sold.  He had previously sold 30 days of leave earlier in his career.  Therefore, he lost 35 days of leave when he separated.

In addition to the 35 days of leave he lost at separation, he lost eight (8) days of leave at the end of Fiscal Year 1988 (FY88).  As a result, he had 68 days of accrued leave.  He had been hospitalized since Jul 88 and was unable to take the leave.

Applicant also indicated that the DD Form 214 failed to show an MSM that he was awarded.

Applicant’s complete response, with attachment, is at Exhibit G.

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ADDITIONAL AIR FORCE EVALUATION:

DFAS-POCC indicated that their records show that the applicant was paid 30 days of accrued leave on 24 Jul 81 and 30 days on 28 Nov 88.  Effective 10 Feb 76, a military member can be paid no more than 60 days of accrued leave during a military career.  If the member’s DD 214 states he sold 65 days of leave, the information is incorrect and he should apply for a corrected DD 214.  According to DFAS-POCC, a total of 35 days of accrued leave was lost at his separation on 28 Nov 88.

A complete copy of the DFAS-POCC evaluation, with attachments, is at Exhibit H.

AFPC/DPPD noted that AFR 35-4, Paragraph 5-22, dated 13 Dec 85, states the Department of Defense (DOD) policy in affect at the time of individual’s disability processing required that an unfit service member be retired or separated within 20 calendar days of the approved Secretarial memorandum.  However, subsequent guidance received from the Deputy Assistant Secretary (Professional Affairs and Quality Assurance), dated 26 Sep 86, later relaxed the policy allowing individuals who had sold their 60 days of leave back to the government to extend their date of retirement or separation date beyond the 20-day rule by the amount of days of leave they could not sell.  Up until that time, individuals undergoing the disability process who had accrued leave that they could not sell back or use simply lost it.

AFPC/DPPD indicated that having reviewed the veteran’s military leave account, along with the disability processing file, it was determined that an injustice occurred in the establishment of the applicant’s date of placement on the TDRL.  It appears that he should have been released from active duty on 5 Jan 89 and placed on the TDRL effective 6 Jan 89, to take into account the 35 days of leave he originally lost plus the 3 additional days he would have acquired based on his new retirement date.  

A complete copy of the AFPC/DPPD evaluation is at Exhibit I.

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APPLICANT'S REVIEW OF ADDITONAL AIR FORCE EVALUATION:

Applicant provided a response indicating that it is his position that his name should not have been placed on the TDRL until he was released from the DVA.  He is requesting an adjustment of his separation date and compensation to reflect this.

Applicant’s complete response is at Exhibit K.

Applicant provided a subsequent response indicating that an adjustment of his separation date raised the question of his retirement percentage.  He believes his retirement percentage was based on 14 years of service, rather than on 14 years and 4 months of service, and should be reviewed for accuracy.  He also reiterated his belief that he should have been compensated for the time he was in a DVA hospital prior to his separation from the Air Force.

Applicant’s complete response is at Exhibit L.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action regarding the applicant’s request that he receive fair remuneration for his unsold leave.  Having carefully reviewed this application, we agree with the recommendation of AFPC/DPPD that the applicant be compensated for the 35 days of accrued leave he lost at separation, as well as the three additional days he would have acquired based on his new retirement date, and adopt their rationale as the basis for our decision that the applicant has been the victim of either an error or an injustice.  However, in addition to the aforementioned days of accrued leave, it appears that he lost eight (8) days of leave at the end of Fiscal Year 1988 (FY88) resulting from his hospitalization.  Therefore, we believe he should also be compensated for those eight (8) days he lost.  In view of the above, we recommend that the applicant’s records be corrected as set forth below.

4.  In addition to the relief recommended above, we note that the applicant’s records indicate he sold 65 days of accrued leave during his career.  However, it appears that he only sold 60 days of accrued leave.  Therefore, we believe his records should be corrected to reflect the appropriate amount of accrued leave that he was paid.  Accordingly, we recommend that the applicant’s records be corrected to reflect that the number of days of accrued leave he was paid was 60 days, rather than 65 days.

5.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action concerning the applicant’s request that he receive remuneration for the time he remained confined to DVA hospital, and that his disability rating be changed.

	a.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions sufficiently persuasive to override the rationale provided by AFPC/DPPD regarding this matter.  Therefore, in the absence of sufficient evidence to the contrary, we agree with the recommendation AFPC/DPPD and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend favorable action on his request.

	b.  The issue raised by the applicant concerning the percentage and computation of his disability retired pay was noted.  In this respect, he asserts that his retirement percentage of base pay was based on 14 years of service, rather than 14 years and 4 months of service, resulting in a 30 percent disability rating, rather than a 35 percent disability rating.  The evidence of the record indicates that at the time his name was placed on the TDRL, he was credited with 14 years, 4 months, and 17 days of active service for retirement.  It further indicates that he was credited with 14 years, 5 months, and 14 days for basic pay.  No evidence has been presented which would lead us to believe that the applicant was inappropriately rated, or that the computation of his retired pay was inaccurate.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, no favorable action is warranted regarding this matter.

6.  Applicant contends that his DD Form 214 failed to reflect award of the MSM.  However, we note that his records have been corrected administratively to show award of the medal.  Therefore, no further action is necessary.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	a.  He was not relieved from active duty and placed on the Temporary Disability Retired List (TDRL), effective 28 Nov 88, but remained on active duty until 13 Jan 89, on which date he was relieved from active duty and was placed on the TDRL, effective 14 Jan 89.

	b.  The Certificate of Release or Discharge from Active Duty, DD Form 214, Item 17, be amended to read that the number of days of accrued leave he was paid was 60 days, rather than 65 days.

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The following members of the Board considered AFBCMR Docket Number 01-03610 in Executive Session on 3 Dec 02 under the provisions of AFI 36-2603:

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

     Exhibit A.  DD Form 149, dated 12 Dec 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, Medical Consultant, dated 25 Jan 02.
     Exhibit D.  Letter, AFPC/DPPD, dated 4 Mar 02.
     Exhibit E.  Letter, AFPC/DPSFM, dated 7 May 02, w/atchs.
     Exhibit F.  Letter, SAF/MRBR, dated 24 May 02.
     Exhibit G.  Letter, applicant, dated 29 May 02, w/atch.
     Exhibit H.  Letter, DFAS-POCC/DE, dated 13 Sep 02, w/atchs.
     Exhibit I.  Letter, AFPC/DPPD, dated 3 Oct 02.
     Exhibit J.  Letter, SAF/MRBR, dated 11 Oct 02.
     Exhibit K.  Letter, applicant, dated 16 Oct 02.
     Exhibit L.  Letter, applicant, dated 28 Oct 02.

                                   

AFBCMR 01-03610

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 , be corrected to show that:

		a.  He was not relieved from active duty and placed on the Temporary Disability Retired List (TDRL), effective 28 Nov 88, but remained on active duty until 13 Jan 89, on which date he was relieved from active duty and was placed on the TDRL, effective 14 Jan 89.

		b.  The Certificate of Release or Discharge from Active Duty, DD Form 214, Item 17, be amended to read that the number of days of accrued leave he was paid was 60 days, rather than 65 days.