RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00642
		INDEX NUMBER:  121.00
	XXXXXXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His retirement date be changed from 1 Feb 03 to 1 May 03 in order to use the 68 days of leave he had accrued.

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APPLICANT CONTENDS THAT:

He initially requested a retirement date of 1 Feb 03 and was briefed that he could sell the 68 days of leave he had accrued.  He questioned this as he had previously heard that he could only sell 60 days in a career and had previously sold 60 days.  He was advised that the limitation did not apply to leave sold during retirement.

Due to circumstances beyond his control, he requested that his retirement date be changed to 1 May 03.  His request was denied on 30 Jan 03 and he had to out process by 31 Jan 03.  It was then that he learned that he would also lose his accrued leave.  If he had been properly advised, he never would have requested a retirement date of 1 Feb 03.

The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 29 Jul 81.  He retired effective 1 Feb 03 with 21 years, 6 months, and 2 days of service.

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AIR FORCE EVALUATION:

AFPC/DPSFM recommends approval of the applicant’s request.  The applicant received an e-mail from the Finance Service Office (FSO) stating that he was miscounseled at the time of his retirement.  The applicant lost 65 days of leave when he retired on 1 Feb 03.  He brought 58 days forward from FY02 to FY03; he earned 10 days of leave during FY03 and used 3 days of leave.  AFI 36-3003, Military Leave Program, Para 4.6 limits payment for accrued leave to 60 days in a career.  Based on the miscounseling, the applicant’s retirement date should be adjusted to include the 65 days of lost leave.

The complete evaluation is at Exhibit C.

AFPC/DPPRRP recommends that the applicant be paid for the 65 days of lost leave rather than adjusting his date of retirement.  They provide their rationale in discussing the two options:

	    a.  Allow payment of the 65 days of annual leave rather than adjusting applicant’s effective date of retirement.  This would be an exception to Title 37, United States Code, Section 501 and AFI 36-3003, Military Leave Program, which states members are only allowed to sell 60 days annual leave during a military career.

	    b.  Adjust the applicant’s effective date of retirement to compensate him for the 65 days of lost leave.  The effective date of all nondisability retirements is set by Title 5, United States Code, Section 8301, as the first day of the month after the month in which retirement otherwise would be effective.  Therefore, the applicant’s retirement date would have to be adjusted from 1 Feb 03 to 1 May 03 to compensate him for the 65 days of lost annual leave.  This adjustment would credit the applicant with 89 days active duty and result in him receiving an additional 24 days of unserved active duty credit.

The complete evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the evaluations were forwarded to the applicant for review and comment within 30 days.  To date a response has not been received.

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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.  We concur with the Air Force’s determination that the applicant was miscounseled regarding his entitlement to sell leave and that some relief is warranted.  After weighing AFPC/DPSFM’s recommendation to adjust the applicant’s retirement date to include 65 days of lost leave and AFPC/DPPRRP’s recommendation to pay the applicant for the lost leave, we believe an alternative approach that incorporates the two recommendations is the most appropriate.  However, we note that since the applicant is precluded by law from selling additional leave beyond the 60 previously sold, being paid an equivalent amount through an authorized entitlement is the only way he can be compensated for his unused leave.  The Board only employs such a correction where the alternative would be a clear injustice to the applicant.  The Board believes that the circumstances of this case support such an action.  In this case, had the applicant not been miscounseled, in order to retire by 1 Feb 03 and not lose his leave, he could have started terminal leave approximately two weeks after the 14 Nov 02 date his request for retirement was approved.  His other option would have been to request a later retirement date and take an appropriate amount of terminal leave to utilize his available balance.  The applicant has indicated that he would have requested a later retirement date, which would have extended his active duty service.  Since we have no basis to doubt his statement, we believe the most appropriate relief would be to extend his retirement date and place him in a terminal leave status.  However, as pointed out in the evaluation prepared by AFPC/DPPRRP, to extend his retirement date to 1 May 03, as requested by the applicant, would result in his receiving credit for unserved active duty time.  In our view, a correction that is both fair to the applicant and the Air Force is to extend his retirement date to 1 Apr 03 and compensate him for his remaining leave balance.  By extending his retirement date to 1 Apr 03, the applicant earns an additional 5 days of leave resulting in a balance of 70 days vice the 65 reflected in the Air Force evaluations.  Extending his retirement date to 1 Apr 03 would require him to be in terminal leave status for 59 days and would leave a balance of 11 days.  Therefore, it is our recommendation that the applicant’s records be corrected 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:

	  a.  He was in a temporary duty status for a sufficient number of days beginning 2 January 2003 and was entitled to per diem in an amount equivalent to eleven (11) days of basic pay.

	  b.  He was not retired effective 1 February 2003, but continued on active duty in a terminal leave status until 31 March 2003, on which date he was relieved from active duty and retired for sufficient length of service effective 1 April 2003.

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The following members of the Board considered Docket Number BC-2003-00642 in Executive Session on 4 September 2003, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

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

     Exhibit A.  DD Form 149, dated 19 Feb 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPSFM, dated 16 Jun 03.
     Exhibit D.  Memorandum, AFPC/DPPRRP, dated 24 Jun 03.
     Exhibit E.  Letter, SAF/MRBR, dated 3 Jul 03.

                                   
                                   Panel Chair

AFBCMR BC-2003-00642

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 XXXXX , XXX-XX-XXXX, be corrected to show that:

		  a.  He was in a temporary duty status for a sufficient number of days beginning    2 January 2003 and was entitled to per diem in an amount equivalent to eleven (11) days of basic pay.

		  b.  He was not retired effective 1 February 2003, but continued on active duty in a terminal leave status until 31 March 2003, on which date he was relieved from active duty and retired for sufficient length of service effective 1 April 2003.

		
		Director
		Air Force Review Boards Agency