RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02095
            INDEX CODE:  121, 136

            COUNSEL:  Neil B. Kabatchnick

            HEARING DESIRED:  Yes


_________________________________________________________________

APPLICANT REQUESTS THAT:

1     Voiding of her retirement on 1 Oct 95;

2.    She be continued on active duty from 1 Oct 95 to 31 Oct 95 as  a
captain and from 1 Nov 95 to 30 Apr 96 in the grade of major;

3.    She was retired in the grade of major on 1 May 96 with  a  total
of 20 years, 6 months, and 5 days of active military service;  and  21
years of service for pay purposes; and,

4.    Such other and/or further relief  as  may  be  deemed  necessary
and/or appropriate in order to  accord  applicant  full  and  complete
relief  including,  but  not  limited  to,  payment  of  any  pay  and
allowances as may be due as a result of the correction of  applicant’s
records.

Counsel amended applicant’s original request as indicated above.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was prematurely retired and subsequently selected for promotion by
a Special Selection Board (SSB).

In support of her  appeal,  applicant  submits  a  copy  AF  Form  281
(Notification  of  Change  in  Service  Member’s   Official   Records)
reflecting her name change, a letter regarding her  SSB  selection,  a
letter indicating the Senate confirmed the results of the SSB,  and  a
copy of the orders.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________




STATEMENT OF FACTS:

The applicant’s Total Active Federal Military  Service  Date  (TAFMSD)
was 26 Sep 75.

On 20 Oct 94, applicant submitted a voluntary  retirement  application
requesting an effective date of retirement of 1 Oct 95.

On 25 Oct 94, applicant was notified by letter of her nonselection for
promotion to the grade of major by the  Calendar  Year  1994A  (CY94A)
Major Central Selection Board which convened on 22 Aug 94.  The letter
advised the applicant, “provided she remain  eligible,  she  would  be
considered for promotion by the next scheduled Major Board which  will
consist of entirely different members.  If  you  are  nonselected  for
promotion by the next board and will be  retirement  eligible  on  the
mandatory separation date for that board (normally the last day of the
sixth month after the board report is approved), you  must  retire  on
the first  day  of  the  seventh  month  after  the  board  report  is
approved.”

On 1 Oct 95, the applicant voluntarily retired in the grade of captain
under the provisions of AFI 36-3203 (Voluntary Retirement:  Sufficient
Service for Retirement).  She served 20 years and  5  days  of  active
duty.

As a result of an earlier appeal, on 30 Jul 96, the Board  recommended
applicant’s Officer Performance Report (OPR) rendered for  the  period
1 Oct 92 through 1 Jun 93 and Promotion  Recommendation  Forms  (PRFs)
prepared for the CY93B, CY94A, and CY95A, be declared void and removed
from her records and that she be considered for promotion to the grade
of major by an SSB for the  CY93B,  CY94A,  and  CY95A  Central  Major
Boards.  The Board  recommended  denial  of  applicant’s  request  for
promotion to the grade of major by the CY94 major  board  through  the
correction of records process (see TAB 1).

As a result of the above decision, the applicant  was  considered  for
promotion to the grade of major by an SSB for the  CY94A  (22 Aug  94)
major selection board which convened on 5 Nov 97 and was selected  for
promotion to the grade of major.

On 6 Jan 98, the applicant was advised that she had been  promoted  to
the grade of major by an SSB and that her promotion could  not  become
effective until the Senate confirmed the promotion list.  On the  same
date, she was also advised that she  could  request  reinstatement  to
active duty if she so desired.

On 1 May 98, the applicant was advised that the  Senate  had  approved
the results of the SSB.

On 5 May 98, Department of the Air Force Special Order  JB-000564  was
published announcing applicant’s promotion to the grade of major  with
a date of rank (DOR) and effective date of 1 Nov  95.   Based  on  the
effective date of applicant’s retirement (1 Oct 95) and the  effective
date of promotion (1 Nov 95), the orders have the following statement,
“The promotion of any officer released from active duty prior  to  the
effective date of promotion is without effect.”

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Commanders’  Programs  Branch,  AFPC/DPSFC,  reviewed  this
application and indicated that under Section  501,  Title  10,  United
States Code (USC), payment for accrued leave cannot  exceed  60  days.
Applicant retired 1 Oct 95  in  the  grade  of  captain  and  received
payment for 0.5 days on 30 Sep 95.  She was selected for promotion  by
an SSB on 1 Nov 97 and her effective date of  promotion  to  major  is
1 Nov 95.  If the retirement date changes from 1 Oct 95 to  1 Oct  98,
applicant:

      -  Accrues 90 days for Fiscal Year 1996 (FY96) - FY98.
      -  Is entitled to payment for 59.5 days as of 30 Sep 98.
      -  Forfeits 30.5 days because payment for accrued leave
cannot exceed 60 days.

DPSFC recommends payment  for  59.5  days  of  accrued  leave  if  her
retirement date changes from 1 Oct 95 to 1 Oct 98.

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

The Retirements Branch, AFPC/DPPRR, also reviewed this application and
indicated that AFI 36-2501, Attachment 2, clearly states in  paragraph
A2.5,  Promotion  Ineligibility:   Officers  are  not   eligible   for
consideration by a selection board or for promotion if they:  Are  not
on the active duty list.  DPPRR states that applicant is not  eligible
for promotion to major based on the effective date of promotion (1 Nov
95) and the effective date of her retirement (1 Oct 95).  Furthermore,
applicant’s retirement date of 1 Oct 95  was  a  voluntary  retirement
established under Section 8911, Title 10, USC, and she chose to retire
on 1 Oct 95 instead of waiting to be considered for promotion to major
by the next scheduled major board.  While it appears that she does not
want to be reinstated to active duty  but  rather  requests  that  her
current retirement grade be changed to major and  to  receive  retired
pay in the grade of major with 23 years and 5 days of active  service,
this equates to an additional 3 years of active service  credit  which
she did not actually serve.  Although DPPRR agrees that an  error  did
occur in  her  records  insofar  as  her  promotion  nonselection  and
although they agree that the Air Force should indeed  try  to  correct
her records in as equitable a manner as possible, they  do  not  agree
that she should be granted 3 additional years of unearned service.

DPPRR further indicated that  Section  1370,  Title 10,  USC,  clearly
states, “Unless entitled to a higher retired grade  under  some  other
provision of law, a commissioned  officer...of  the  Army,  Navy,  Air
Force, or Marine Corps who retires under any provision  of  law  other
than Chapter 61 or Chapter 1223 of this title shall,...be  retired  in
the highest grade in which he served on active duty satisfactorily, as
determined by the Secretary of the military department concerned,  for
not less than six months.”  Therefore, applicant will meet all time-in-
grade (TIG) requirements of law with an effective date  of  retirement
of 1 May 96 and will additionally receive retired pay  in  that  grade
and with increased service for the remainder  of  her  life.   If  the
decision is made to grant the relief sought,  the  applicant’s  record
should be corrected to show she was promoted to major and remained  on
active duty until 1 May 96.  This would allow her  to  retire  in  the
grade of major but only at the point in time where she would have  met
all legal requirements to retire in grade (6 months’ TIG as major).

A complete copy of their evaluation, with attachments, is attached  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  reviewed  the  Air  Force  evaluations  and  indicated   that
applicant concurs with DPPRR’s recommendation that her records  should
be corrected to show she was promoted  to  (the  permanent  grade  of)
major (with DOR and effective date of 1 Nov 95) and remained on active
duty until 1 May 96  at  which  time  applicant  was  retired  in  the
permanent grade of major, with 20 years,  6  months,  and  5  days  of
active military service and 21 years of service for pay purposes.

Counsel’s complete response is attached 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.  As  noted  by  the  Air
Force, an error did occur in the applicant’s  record  insofar  as  her
promotion nonselection.  It is duly noted that  applicant  voluntarily
chose to retire on 1 Oct 95 instead of waiting to  be  considered  for
promotion to major by the next scheduled Major Board;  however,  after
noting she was selected for promotion to major by SSB  for  the  CY94A
board, a majority of the Board feels that she should be retired in the
grade for which she was selected after the  minimum  TIG  requirements
are satisfied.  In view of the above,  and  in  order  to  offset  any
possibility of an injustice to the applicant, a majority of the  Board
recommends her record be corrected as 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:

      a.    She was not released from active duty  on  30 Sep  95  and
retired for length of service on 1 Oct 95, but rather  on  that  date,
she continued to serve on active duty.

      b.    She was promoted to the grade  of  major,  effective,  and
with a DOR of 1 Nov 95.

      c.    On 1 May 96, she was retired for length of service in  the
grade of major.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 3 June 1999, under the provisions of AFI 36-2603:

                  Ms. Martha Maust, Panel Chair
                  Mr. Clarence D. Long, III, Member
              Ms. Barbara J. White-Olson, Member
              Mrs. Joyce Earley, Examiner (without vote)

By a majority vote, the Board recommended  applicant  be  granted  her
amended request.  Ms. White-Olson voted to deny  applicant’s  requests
but does  not  wish  to  submit  a  minority  report.   The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 23 Jul 98, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPSFC, dated 5 Aug 98.
     Exhibit D.  Letter, AFPC/DPPRR, dated 20 Aug 98.
     Exhibit E.  Letter, AFBCMR, dated 7 Sep 98.
     Exhibit F.  Letter fr counsel, dated 22 Sep 98.



                                   MARTHA MAUST
                                   Panel Chair

INDEX CODE:  121, 136

AFBCMR 98-02095




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   , be corrected to show that:

            a.   She was not released from active duty on 30 September
1995 and retired for length of service on 1 October 1995,  but  rather
on that date, she continued to serve on active duty.

            b.   She was promoted to the grade  of  major,  effective,
and with a date of rank of 1 November 1995.

            c.   On 1 May 96, she was retired for length of service in
the grade of major.






                                                            JOE     G.
LINEBERGER
                                                         Director
                                                           Air   Force
Review Boards Agency