RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-03857
		INDEX CODE:  137.02
		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  19 APRIL 2006

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APPLICANT REQUESTS THAT:

1.  His Survivor Benefit Plan (SBP) be validated.

2.  His retirement date of 1 November 2004 be changed to 1 December 2004 so that his lost leave can be restored.

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APPLICANT CONTENDS THAT:

During the months of July and August 2004 his squadron was experiencing a high volume/low manning situation with on-going maintenance demand of departing and returning of aircraft and its personnel from combat locations.  He lost 41 days of leave he was unable to sell back because years ago he sold back 60 days.  His permissive/terminal leave was scheduled from 2 September 2004 through 31 October 2004, when he planned to complete most of his remaining appointments.  However, his permissive leave request was disapproved because all outprocessing appointments must be completed before permissive/terminal leave can begin or be approved.  He had already lost a considerable amount of leave, so the Retirements and Finance office suggested he request an extension of his retirement date.  His request was disapproved due to lack of information.  He resubmitted his request along with an in depth information letter from his commander.  His second request was disapproved for lack of processing time.

He is now officially retired, and requests his retirement date be changed to 1 December 2004 so he can receive credit for the 41 days of lost terminal leave.

In support of the application, the applicant submits an e-mail message, a letter from his commander, the Data for Payment of Retired Personnel form, and a letter from SBP office.  The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Information extracted from the Military Personnel Data System (MilPDS) indicates that the applicant’s Total Active Federal Military Service Date (TAFMSD) is 9 October 1980.  He retired on 1 November 2004.  On 9 September 2004, the Board granted a two-year constructive reenlistment effective 1 November 2002 to establish a date of separation of 31 October 2004 to permit retirement on 1 November 2004.

The applicant married and had an eligible child when he retired from military service on 1 November 2004, but he did not complete the documents necessary to properly establish his retired pay account (including an SBP election) until after his retirement date.  Absent a valid SBP election, the finance center established spouse and child coverage based on full retired pay to comply with the law.

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AIR FORCE EVALUATION:

HQ AFPC/DPFF recommends denial.  DPFF states a review of the applicant’s pay file reflects he lost 45.5 days of terminal leave at the end of Fiscal Year (FY) 2004.  He carried forward 45.5 days of leave at the end of FY 03.  He used 30 days of leave during FY 04.  The applicant had an approved retirement date of 1 November 2004.  The evacuation period was from 13 September 2004 and lasted until on/about 22 September 2004.  DPFF states AFI 36-3003, Military Leave Program, note below para 10.9.7 states, in part, a member’s application must clearly establish that an error or injustice by the Air Force caused the member’s lost leave.  Additionally, para 6.7, Terminal Leave, is chargeable leave taken in conjunction with retirement from active duty.  The applicant’s Commander provided a statement asserting that due to Hurricane Ivan, the applicant was unable to outprocess in a timely manner and the delay in outprocessing prevented the applicant from being placed on terminal leave.  Reference AFPC/DPPPRR email, the applicant applied and was approved for retirement since 16 July 2004 which was ample time for outprocessing.  DPFF notes although Hurricane Ivan hit, the applicant had ample time to outprocess (30 days) during the month of October.  Although the applicant experienced some interruption during this time it did not prevent him from outprocessing in a timely manner prior to Hurricane Ivan.  DPFF’s evaluation, with attachment, is at Exhibit C.

HQ AFPC/DPPRRP recommends denial.  DPPRRP states in an interim change to AFI 36-3203, Service Retirements, para 2.20, the high year tenure (HYT) for TSgts was changed from 22 Years of Service (YOS) to 24 YOS.  DPPRRP opines the applicant knew he was obligated to request retirement on the first day of the month after the month in which he reached his HYT or be separated on that date.  The applicant’s HYT was 31 October 2004 and he could have applied for retirement a year in advance of his HYT and not waited until 16 July 2004 to apply.  If he was waiting to see if he would be promoted to master sergeant before applying for retirement, AFI 36-3203, para 2.21.3, allows withdrawal or extension of an approved retirement date based on promotion.  DPPRRP opines there was no reason for the applicant to have delayed applying to retire on his HYT.  

DPPRRP notes upon his retirement request of 16 July 2004, eight months after he could have requested retirement, the applicant signed the following statement, included on his preapplication checklist in paragraph A7.3 (atch 3) which states:  “I understand that I may not extend my approved retirement date, or withdraw my application, solely to allow me to take terminal leave.”  On 29 October 2004, two days before his approved retirement date at his HYT, the applicant’s MPF faxed the applicant’s request to change his approved retirement date.  DPPRRP responded to this request “Member’s request to extend approved retirement is disapproved.”  Retirement effective 1 November 2004 remains firm and special order is valid.”  On 3 November 2004, the MPF again faxed the request to change the applicant’s approved retirement date from 1 November 2004 to 1 December 2004.  On 17 November 2004, the superintendent of HQ AFPC Retirement’s Branch responded to this request by e-mail which clearly states that the applicant had sufficient time to outprocess between the date his retirement was approved on 12 August 2004, and his approved retirement date of 1 November 2004.

DPPRRP opines the applicant knew his HYT was 24 YOS and, knowing that, he could have requested retirement as early as November 2003.  The reason why he waited until 16 July 2004 to apply for retirement is not known, but it is clear that the applicant made no attempt to request retirement or begin retirement processing by taking into consideration his leave balance.  The evacuation between 13 September 2004 and 22 September 2004 is of no consequence because the applicant was to have begun his PTDY and terminal leave on 2 September 2004 and was to have completed outprocessing before then.  

DPPRRP recommends denial of any adjustment to the applicant’s retirement date.  To allow adjustment of 30 days would mean that the applicant would have his TAFMSD adjusted by a month (until 1 December 2004) which would entitle the applicant to active duty basic pay for that time, Basic Allowance for Housing, 1 month of subsistence allowance, and 2.5 more days of annual leave.  Other members are not granted HYT extensions unless it is in the best interest of the Air Force, not because it is in the best interest of the individual member and, certainly, not for that member to be allowed to use terminal leave.  DPPRRP’s evaluation, with attachments, is at Exhibit D.

HQ DPPTR recommends denial.  DPPTR states Public Law (PL) 99-145 requires spouses of married members to concur in writing prior to the member’s effective date of retirement in SBP elections that provide less than full spouse coverage.  When a member fails to make a valid election prior to retirement, the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) establishes SBP coverage at the maximum level for all eligible beneficiary(ies) to comply with the law.  

DPPTR notes the applicant failed to respond to their 24 March 2005 letter requesting he submit a notarized statement signed by his wife acknowledging that she understands that if his record is corrected, SBP annuity currently valued at no less than $862 would be reduced to $550 per month.  Furthermore, unless the member’s retirement date is corrected, approval of this request, even with his wife’s properly completed concurrence, would provide the member an opportunity not afforded other retirees and is not justified by the facts of this case.  DPPTR’s evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant for review and comment on 29 April 2005.  As of this date, this office has received no response (Exhibit F).

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  

    a.  The applicant asserts he was unable to take leave because of military necessity and therefore his retirement date should be extended to accommodate 41 days of leave he lost at retirement.  After thoroughly reviewing the documentation applicant submitted in support of his appeal, we do not believe the evidence provided is sufficient to substantiate his claims.  We have noted the evaluations of the applicant’s contentions by the Air Force offices of primary responsibility and we are in agreement with their assessments.  In the absence of evidence that, in our view, successfully refutes the evaluations of this case, we find the applicant had ample opportunity to use his leave prior to his retirement.  

    b.  As to the applicant’s request to validate his SBP, we do not find the evidence provided supports findings of error or injustice with respect to his issue.  It appears the applicant is asserting that he was not properly counseled concerning the requirements of the SBP prior to his retirement.  However, other than his own assertions, he has provided no evidence substantiating this claim, nor did he provide, upon request, a notarized statement signed by his spouse concerning the impact of the acceptance of his belated election.  We note the applicant may, in accordance with law, elect to terminate his SBP coverage between the second and third anniversary of his receiving retired pay, if he obtains a written agreement from his spouse concurring with the decision to terminate the coverage.  In view of the foregoing, we agree with the recommendation of the Air Force (HQ AFPC/DPPTR) and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or an injustice.

    c.  Accordingly, in view of the above, we have no basis on which to favorably consider the requested relief.

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The following members of the Board considered this application in Executive Session on 7 July 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2005-00792.

	Exhibit A.  DD Form 149, dated 03 Dec 04 w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, HQ AFPC/DPFF, dated 09 Mar 05.
	Exhibit D.  Letter, HQ AFPC/DPPRRP, dated 10 Mar 05 w/atchs.
	Exhibit E.  Letter, HQ AFPC/DPPTR, dated 22 Apr 05.
	Exhibit F.  Letter, SAF/MRBR, dated 29 Apr 05.