RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  97-02996
            INDEX CODE: 136.00

            COUNSEL:  None

            HEARING DESIRED: Yes



_________________________________________________________________

APPLICANT REQUESTS THAT:

He be allowed to retire from the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons the applicant believes the records to be in error or unjust  and
the evidence submitted in support of the appeal is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant's military records, are contained in the letter  prepared  by  the
appropriate office of the Air Force.   Accordingly,  there  is  no  need  to
recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Retirements Branch, Directorate of Pers Program Management,  AFPC/DPPRR,
reviewed the application and states that no error or injustice  occurred  in
the processing of applicant’s request for Special Separation  Benefit  (SSB)
separation.  All actions by the member were voluntary.  The  applicant  made
a conscious decision to separate and receive the monetary bonus rather  than
remaining on active duty for an  additional  5  months  in  order  to  reach
retirement eligibility.  Member’s reason for doing this was because he  knew
if he was retired, he  would  have  to  forfeit  either  his  VA  disability
compensation or his retirement pay since he could not  receive  both.   That
logic remains true for retirement  pay  as  well  as  separation  pay.   The
contract, which
the applicant signed on 29 September  1992,  contained  all  the  statements
required by law and DoD policy; applicant was paid the SSB amount  that  was
agreed to and those  funds  have  not  been  recouped.   The  VA  disability
compensation awarded to the applicant  was  in  addition  to  that  promised
under SSB and, following the period of time that a like  amount  is  reduced
from the VA compensation, he will continue to receive VA  payments  for  the
remainder of his life.  There are no provisions of law to allow  payment  of
retired pay unless the member has met all requirements to receive such  pay.
 The applicant’s request for retirement is  not  appropriate  with  only  19
years, 7 months, and 2 days of active service.  Additionally, there  are  no
provisions of law that allow additional crediting  of  service  for  service
not performed.  And, finally, it is important to note  that  numerous  prior
military personnel have been granted VA disability compensation  entitlement
following receipt of either Voluntary  Separation  Incentive  (VSI)  or  SSB
separation pay.  It would be unfair to make such a change to  this  member’s
military record due  to  his  eligibility  for  VA  disability  compensation
without also changing all the other prior Air  Force  members  falling  into
this category.  They recommend denial of applicant’s request.

A complete copy of the Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 18 May 1998 for review and response.  As of this date,  no  response  has
been received by this office.

_________________________________________________________________

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 probable error or injustice.  After reviewing the  evidence  of
record, we believe that the applicant’s decision to separate  from  the  Air
Force, under the Special Separation Benefits (SSB)  program,  was  based  on
inaccurate information.  It appears that  the  applicant  believed  that  he
could accept the lump sum SSB and also received Veteran Administration  (VA)
compensation  after  he  separated  from  the  Air  Force.   However,  after
receiving VA disability compensation, he was advised that there was  a  law,
Title 10, United States Code, stating that he would have to repay  the  lump
sum payment of almost $72,000 before  he  could  receive  any  VA  payments.
Applicant states that had he been aware of  this  law,  he  would  not  have
separated under the SSB program but would have continue on active  duty  for
an additional  5  months  until  he  was  retirement  eligible.   While  the
applicant has not provided evidence that Air  Force  officials  miscounseled
him, in view of the short period of  time  needed  to  become  eligible  for
retirement, we believe that had he been aware of the  requirement  to  repay
the lump sum payment prior to  receiving  VA  compensation,  he  would  have
continued on active duty for an additional 5 months.  In view of  the  above
findings and in an effect to remove any  possibility  of  an  injustice,  we
recommend his records be corrected to the extent indicated below

_________________________________________________________________

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  not  released  from  active
duty under the provisions of AFR  39-10,  on  29  September  1992,  but  was
continued on active duty until  29 February  1993,  on  which  date  he  was
released from active duty and retired for length  of  service,  effective  1
March 1993.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 12 May 1999, under the provisions of AFI 36-2603:

          Mr. Vaughn E. Schlunz, Panel Chair
          Mr. Terry A. Yonkers, Member
          Mr. Richard A. Peterson, Member

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

   Exhibit A.  DD Form 149, dated 28 Sept 97, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRR, dated 6 May 98.
   Exhibit D.  Letter, AFBCMR, dated 18 May 98.





                                   VAUGHN E. SCHLUNZ
                                   Panel Chair


AFBCMR 97-02996




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 APPLICANT be corrected to show that he was not released from
active duty under the provisions of AFR 39-10, on 29 September 1992, but
was continued on active duty until 29 February 1993, on which date he was
released from active duty and retired for length of service, effective 1
March 1993.




                                                                    JOE G.
LINEBERGER

Director
                                                                    Air
Force Review Boards Agency