RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-01826
            INDEX CODE:  121.03

            COUNSEL:

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement date of 30 June 1998 be adjusted to allow  compensation
for 77 days of leave he forfeited due to misinformation received.

By amendment, he requests that he be granted the full use of  the  100
days of leave he was planning on using prior to  the  removal  of  his
commander (Colonel C---); and, payment for attorney fees.

_________________________________________________________________

APPLICANT CONTENDS THAT:

During his out-processing briefing, he was briefed in  error  that  he
had the option of using terminal leave or  selling  back  60  days  of
leave upon his retirement.  Upon learning his replacement would not be
appointed in time for him to  take  terminal  leave,  he  changed  his
original plan to take terminal leave and elected to sell  back  60  of
his 77 days of unused leave.

In support of his request,  applicant  submits  a  personal  statement
(Exhibit A).

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
27 May 1971.

On 17 August 1970, the applicant, while serving as an enlisted member,
was honorably discharged from  the  Regular  Air  Force  to  accept  a
commission in the Air Force.  On 18 August 1970, he  was  appointed  a
second lieutenant, Reserve of the Air Force.  He was  integrated  into
the Regular Air Force on 18 February 1972 and  progressively  promoted
to the grade of captain.  Pursuant to his tender  of  resignation,  he
was honorably discharged from the Regular Air Force on  9  June  1979.
On 10 June 1979, the applicant was appointed a captain, Reserve of the
Air Force, and was voluntarily ordered to extended active duty  on  15
June 1980.  He was integrated into the Regular Air Force in the  grade
of major on 8 February 1984.  He was  progressively  promoted  to  the
grade of lieutenant colonel, effective and with  a  date  of  rank  of
1 August 1988.  On 30 June 1998, he was relieved from active duty  and
retired in the grade of lieutenant colonel on 1 July  1998  under  the
provisions of AFI 36-3208 (Sufficient Service for Retirement).  He had
completed a total of 27 years, 1 month and 4 days  of  active  service
for retirement.

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

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Commanders’ Programs Branch, HQ AFPC/DPSFC, stated that the
applicant had 60 days of leave as of 1 Oct 97, earned 22.5 days as  of
30 Jun 98 and used 5 days during the Fiscal Year (FY)  (60  +  22.5  =
82.5 - 5 = 77.5).  Applicant’s leave history shows payment for 60 days
on 9 Jun 79.  Under Title 37 U.S.C., payment for accrued leave  cannot
exceed 60 days.  He therefore forfeited the 77.5 days of accrued leave
upon retirement.  Applicant stated that the  base  retirement  section
informed him he could take terminal leave or receive payment for up to
60 days of accrued leave.  He initially planned to take leave  in  the
Spring and later Permissive Temporary Duty (PTDY)/terminal leave.  The
applicant later opted not to take leave and to receive payment for  60
of the 77 days of accrued leave because he felt obligated  to  support
mission requirements.  DPSFC  supports  granting  relief  because  the
applicant received misinformation that he could receive payment for 60
days when, by law, he had already received payment for the maximum  60
days.  They cannot however support adjusting his  retirement  date  to
allow compensation for 77 days since he had opted to forfeit 17  days.
DPSFC stated that, if HQ AFPC/DPPRS agrees, the applicant’s retirement
date should be changed from 1 Jul to 1  Sep  98.   They  defer  to  HQ
AFPC/DPPRS to address adjusting the retirement date (Exhibit C).

The Retirements Branch, HQ AFPC/DPPRR, stated that  according  to  the
Personnel Data System (PDS), the applicant applied for retirement on 3
Jul 97 to be effective 1 Jul 98 and his request was approved on 10 Jul
97.  There is no provision in the governing Air Force  instruction  to
extend an approved retirement for the sole  purpose  to  be  paid  for
accrued leave or to take terminal leave.  AFI  36-3203,  Attachment  7
(Preapplication Checklist), clearly states a member  will  not  change
their retirement date solely to allow  for  terminal  leave.   Members
applying  for  retirement  are  required  to   sign   and   date   the
preapplication  checklist.   DPPRR  stated  that  the  applicant   has
submitted no documentation  to  substantiate  the  fact  that  he  was
miscounseled.  The effective date of all nondisability retirements  is
set by Section 8301, Title 5, U.S.C. as the first  day  of  the  month
after the month in which retirement otherwise would be effective.   To
grant the applicant additional active duty time  to  use  77  days  of
leave, his retirement date would have to be extended by 3 full months.
 DPPRR recommended the applicant’s request be denied (Exhibit D).
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory  opinions  and  requests  the  Air
Force continue his period of active service from the date of  granting
relief, for a period equal to the amount of leave and  permissive  TDY
he held on the date of  his  former  commander’s  dismissal.   In  the
alternative, he requests monetary compensation for the damage done  by
the error; that is, the value of his base pay  and  benefits  for  the
last month he served on active duty (gross pay) times 3 months.   This
is not selling back his leave.  This is compensation for the error and
injustice done by the Air Force.  He also requests that the Air  Force
pay for attorney fees.  He submits four statements of  support,  which
include letters from the acting commander of ACC TRSS and  the  airman
who presented the pre-retirement briefing.

In his opinion, the Air Force recommendation is  neither  satisfactory
nor just.  First, his  commander  was  relieved  from  duty  during  a
critical  time  in  his  retirement  process.   The  plans   for   his
replacement and  promises  that  he  could  take  terminal  leave  and
permissive TDY went with  him.   At  the  same  time,  counseling  and
options to move his retirement date from 1 Jul 98 to a later date were
not given or offered.  He  therefore  lost  the  opportunity  to  take
approximately 100  days  of  leave  and  permissive  TDY  after  being
promised he could do so.  Second, he  was  told  his  entire  military
career that he had the option of either taking the terminal  leave  or
selling back  60  days  of  leave  upon  retirement.   This  fact  was
reinforced numerous times over many years and never came into question
until the last day of his active duty career.   Through  circumstances
beyond his control, he was denied either option.  Upon exiting the Air
Force, he was forced to add 77 days of lost  leave  on  to  a  growing
total of over 200 days of lost leave.

The law of selling back leave changed in 1976 (he  has  now  learned).
Because he sold 60 days of leave upon terminating his service in  June
of 1979, he lost any opportunity to sell back any future  accumulation
of leave forever.  This fact and law was NEVER pointed out to him  and
he NEVER found out until the last  day  of  his  service.   His  first
priority was to take the 100 days of terminal leave and permissive TDY
instead of selling back 60 days of leave  because  it  seemed  a  much
better transition for him.

He does not support the  DPSFC  recommendation.   However,  he  thinks
DPSFC was trying to accommodate his situation somewhat.  DPSFC  should
have recommended for the retirement date to be moved 4 months ahead so
that he could take both the remaining terminal  leave  and  permissive
TDY.

He filed an appeal on the last day of his  active  duty  service.   He
expected and was counseled that some competent person in the  Military
Personnel Center would immediately extend his retirement date 3 months
so he could use the leave he had been entitled to.  If his  retirement
date was to be extended, he should be granted the full balance of  his
leave at that point … which was 77 days.  THIS DID NOT HAPPEN  -  THAT
WINDOW OF OPPORTUNITY IS LOST FOREVER.  Thus, the request for a 77 day
extension no longer makes sense.   As  the  original  opportunity  for
correction of his problem  is  lost,  his  “relief  sought”  from  the
original request has to also change to properly compensate him for the
injustices caused by the  Military  Personnel  Flight  (MPF)  and  his
commander’s removal.  He would like the relief changed  to  grant  him
the full use of the 100 days he was planning on  using  prior  to  the
removal of his commander.

He prepared and saved  the  leave  to  use  the  full  100  days  upon
retirement.   Given  the  lost  opportunity,   and   the   change   of
circumstances, he was  not  even  able  to  zero  out  the  leave  and
permissive TDY days prior to 1 Jul 98.  This loss of  transition  time
has cost him over 4 months of unemployment.   Additional  evidence  to
support his claim for extending his retirement by 4  months  has  been
provided.  He now requests that he be reinstated  to  active  duty  so
that he can serve a short period of time (an hour, a day,  a  week,  a
month or two months) and then utilize the 100  days  (both  leave  and
permissive TDY) he had prepared to use before this mess started.  This
would properly compensate him by allowing him to properly  retire  and
use his leave and permissive TDY and get on with his life.

A complete copy of this response is appended at Exhibit F.

_________________________________________________________________

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 warranting reinstatement of a
portion  of  applicant’s  leave.   After  reviewing  the   facts   and
circumstances of  this  case,  the  Board  majority  agrees  with  the
assessments of HQ AFPC/DPSFC and adopts their rationale as  the  basis
for the Board’s decision.  Inasmuch as the applicant  was  misinformed
that he was entitled to sell 60  days  of  leave,  he  should  not  be
penalized for the 60 days of leave he  had  to  forfeit.   As  to  the
applicant’s request for  the  additional  days  of  leave,  the  Board
majority finds no basis to recommend favorable action on this  portion
of the applicant’s request.  While we note that the applicant did  not
take terminal leave prior to his  retirement,  no  evidence  has  been
provided to indicate that this was not a  voluntary  decision  on  the
applicant’s part or that a request by him  for  terminal  leave  would
have been denied had such a request been submitted.  In this  respect,
we agree with DPSFC and adopt their rationale as the basis for  denial
of relief greater than that recommended  below.   The  Board  majority
therefore concludes that the applicant’s records should  be  corrected
to extend his retirement date to 1 September 1998, which  will  enable
him to be compensated for the 60 days of lost leave.

4.  As to the applicant’s request for reimbursement  for  legal  fees,
claims payable as a result of  action  by  this  Board,  by  law,  are
limited to the compensable categories set forth in 10 U.S.C.  1552(c).
Therefore, this Board is without authority  to  act  on  requests  for
attorney’s fees.
_________________________________________________________________

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  retired
effective 1 July 1998, but was continued on active duty in a  terminal
leave status until 31 August 1998, on which date he was relieved  from
active duty and retired for length of  service  effective  1 September
1998.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 18 February 1999, under the provisions of AFI 36-
2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Terry A. Yonkers, Member
              Ms. Peggy E. Gordon, Member

By a majority vote, Ms. Gordon and Mr. Yonkers voted to correct the
record, as recommended.  Mr. Peterson voted to deny the applicant’s
stated request but did not desire to submit a minority report.  The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 30 Jun 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPSFC, dated 6 Jul 98.
   Exhibit D.  Letter, HQ AFPC/DPPRR, dated 20 Aug 98, w/atchs.
   Exhibit E.  Letter, SAF/MIBR, dated 7 Sep 98.
   Exhibit F.  Letters from applicant, dated 30 Sep 98, w/atchs,
                   4 Oct 98, 15 Nov 98 and 23 Nov 98, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair