RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03646
		INDEX CODE:  121.03
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His retirement date be changed to 1 December 2002 vice 1 October 2002 so that he may be paid for the additional 60 days of terminal leave he lost upon retirement.  

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APPLICANT CONTENDS THAT:

In the after-math of the September 11th terrorist attack on the World Trade Center and the Pentagon, he was designated the Joint Force Air Component Commander for the Continental United States for Operation Noble Eagle and responsible for establishing and maintaining the enhanced air defense posture for the United States.  Due to very restrictive rules-of-engagement, he could take very little leave and when his change of command was set for 1 August 2002, he found out that he would have 100 days of leave and 20 days of permissive TDY for a total of 120 days.  That would have extended his tour of duty until 1 December 2002.  In retrospect, he should have requested a 1 December 2002 retirement date.  

Although he was aware that he had sold over 60 days of leave over the years when terminating his several tours of active duty, he was also vaguely aware that there was a “prior to” date that would allow an individual to be paid for leave even if that person had been paid previously.  Prior to him requesting a retirement date, he checked with the Air Force General Officer Management Office to see if he could sell back leave.  He was told that there was a “before date” (date not given) so that even if you sold leave before that date, you could sell leave again.  He was also told that a records search had been conducted and he was authorized to sell back the 60 days of leave.  Based on this information, he asked for a retirement date of 1 October 2002.  He made a mistake based on advice that was incorrect and requests that the Board correct his record and change his retirement date to 1 December 2002 with payment of 60 additional days of terminal leave.  

In support of his appeal, applicant submits a leave and earnings statement, copies of Special Order AA-441, retirement order and a DD Form 214.  Applicant's complete submission, with attachments, is attached at Exhibit A.

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STATEMENT OF FACTS:

Information extracted from the applicant’s master personnel record indicates that effective 1 October 2002, applicant retired in the grade of major general with 25 years, 1 month and 21 days of active service for retirement and 37 years, 10 months and 21 days of service for basic pay.  

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AIR FORCE EVALUATION:

AFSLMO recommends the application be approved.  AFSLMO states that they provided the applicant an erroneous estimated pay adjustment worksheet based on information provided by DFAS.  AFSLMO believes that the Chief of Staff would have approved a 1 December 2002 retirement date, allowing the applicant to take all of his remaining leave.  

The AFSLMO evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 12 December 2002, a copy of the Air Force evaluation was forwarded to applicant for information purposes.

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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 timely filed.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant relief.  The applicant has provided convincing evidence that his decision to retire on 1 October 2002 vice 1 December 2002, was based on the information he received from responsible officials.  Had he received accurate information regarding the selling of his leave, we believe he would have made a more informed decision regarding his retirement date.  However, extending the applicant’s retirement date by two months would credit him with increased retired pay for the rest of his life--the total of which could ultimately exceed the monetary value of the lost 60 days.  Therefore, in an effort to afford the applicant full, yet fair relief for the loss of 60 days of leave, we resorted to a “creative” form of records correction.  Pursuant to our request, the Defense and Finance Accounting Service computes the amount of money the applicant would receive for a fictitious temporary duty equating to the dollar value of 60 days of leave at his grade and rank.  This form of correction would afford the applicant full and fair compensation without the adverse effect of either an offset or a windfall.  In view of the above, we recommend that the applicant be afforded relief by correcting his record as indicated below.  

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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 he was in a temporary duty status for sixty (60) days beginning 1 July 2002 and was paid total per diem the equivalent of sixty (60) days of basic pay.  

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The following members of the Board considered this application in Executive Session on 26 March 2003, 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 11 Nov 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFSLMO, dated 2 Dec 02.
   Exhibit D.  Letter, SAF/MRBR, dated 12 Dec 02.

                                   

AFBCMR 02-03646
INDEX CODE:  121.03

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 xxxxxxxxxx, be corrected to show that he was in temporary duty status for sixty (60) days beginning 1 July 2002 and was paid total per diem the equivalent of sixty (60) days of basic pay.