RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-03610
            INDEX CODE:  108.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

He receive fair remuneration for his unsold leave, possibly beyond  30
days.

He receive fair remuneration for the time he remained  confined  to  a
Department of Veterans Affairs (DVA) hospital, and the five months  he
was unable to work after his release.

By amendment, his disability rating be changed from 30 percent  to  35
percent.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was not given the opportunity to take terminal leave.

While he was in the DVA hospital, he was unable to work  and  his  pay
was cut in half to a third of what it was.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Air Force Reserve on 15 Jun 74 in the  grade
of airman basic.  He enlisted in the Regular Air Force on 25 Jul 77 in
the grade of senior airman for a period of four years.

On 23 Sep 88, an  MEB  was  conducted  and  rendered  a  diagnosis  of
schizophreniform disorder,  acute,  severe,  marked  by  delusions  of
persecution, paranoid ideation, inappropriate affect and loss of sense
of self, with deterioration from a previous level of  functioning  and
progressive withdrawal  The MEB recommended that the applicant’s  case
be referred to an Physical Evaluation Board (PEB).  It also  indicated
that nonmilitary hospitalization was required.

On 27 Oct 88, an Informal Physical Evaluation  Board  (IPEB)  convened
and rendered a diagnosis of schizophreniform disorder, acute,  severe,
with considerable impairment of social  and  industrial  adaptability.
The IPEB found that  the  applicant  was  unfit  because  of  physical
disability, that the disability was incurred while the  applicant  was
entitled to receive basic pay, that the disability was incurred in the
line of duty, that the disability was ratable under VA Diagnostic Code
9205 at 50 percent, and that the disability might be  permanent.   The
IPEB recommended temporary retirement.

On 3 Nov 88, the applicant agreed with the  findings  and  recommended
disposition of the PEB.

Applicant was relieved from active duty and his name was placed on the
TDRL, effective 28 Nov 88, in the grade of master  sergeant.   He  was
credited with 14 years, 4 months, and 17 days of active duty service.

On 28 Mar 90, an Informal Physical Evaluation  Board  (IPEB)  convened
and  rendered  a   diagnosis   of   schizophreniform   disorder   with
considerable impairment of social and  industrial  adaptability.   The
IPEB  found  that  the  applicant  was  unfit  because   of   physical
disability, that the disability was incurred while the  applicant  was
entitled to receive basic pay, that the disability was incurred in the
line of duty, that the disability was ratable under VA Diagnostic Code
9205 at 50 percent, and that the disability might be  permanent.   The
IPEB recommended that the applicant’s name be retained on the TDRL.

On 12 Jul 91, an Informal Physical Evaluation  Board  (IPEB)  convened
and rendered a diagnosis of schizophreniform disorder, depressed type,
in remission,  with  definite  impairment  of  social  and  industrial
adaptability.  The IPEB found that the applicant was unfit because  of
physical disability,  that  the  disability  was  incurred  while  the
applicant was entitled to receive basic pay, that the  disability  was
incurred in the line of duty, that the disability was ratable under VA
Diagnostic Code 9205 at 30 percent, and that the disability  might  be
permanent.  The IPEB recommended permanent retirement.

On 6 Aug 91,  the  Secretary  of  the  Air  Force  directed  that  the
applicant’s name be removed from the TDRL under the provisions  of  10
USC 1210(c) and permanently retired, effective 16 Aug 91.

A DD Form 215, dated 10 Sep 02, indicates that the applicant’s records
have  been  corrected  administratively  to  reflect  award   of   the
Meritorious Service Medal (MSM).

_________________________________________________________________

AIR FORCE EVALUATION:

The  Medical  Consultant  recommended  denial  as  to  any  change  in
retirement disability levels, indicating that it appears the level  at
which  the  permanent  disability  retirement   was   determined   was
appropriate for the degree of  impairment  found  at  the  applicant’s
final TDRL evaluation in May 91, a level that reflected  his  improved
status and functionality as noted in his ability to  pursue  full-time
college  study  and  to  function  well  in  his  social  environment.
Disability  compensation  is  based  on  the  current  status  of  the
individual at the time of final disposition, and no error or injustice
was found that would warrant a higher level  of  compensation  at  the
time of his permanent disability retirement determination. If, in  the
interim, the DVA has found it appropriate to increase  or  lower  this
level, it is within their charter to do so depending on changes in his
psychological status.  This does not, however, imply that such changes
should have been effective at the time of his final  disposition  from
the military.

A complete copy of the Medical Consultant’s evaluation is  at  Exhibit
C.

AFPC/DPPD  recommended  denial,  indicating  that  a  review  of   the
disability processing records does not show any variances from  normal
procedures for a member in the Air Force Disability Evaluation  System
(DES).  Service members who undergo processing through the DES are not
authorized terminal leave like other military  retirees.   The  policy
for taking leave at that time, and the policy still in effect, is that
if an individual has not previously sold  60  days  of  accrued  leave
after 10 Feb 76, he or she  must  sell  the  leave  at  separation  or
retirement.  Those  members  retiring  or  separating  for  disability
purposes may only  use  accrued  leave  that  they  cannot  sell  back
(anything over 60 days).  A review of the  applicant’s  DD  Form  214,
Certificate of Release or Discharge from Active Duty, revealed that he
was paid for 65 days of accrued leave at the time he was released from
active  duty.   This  leads  them  to  believe   that   some   unusual
circumstances may have occurred during this period  to  waive  the  60
days ruling.  Since their office is not a pay or leave authority, they
cannot determine why an exception to policy was made  for  the  member
which allowed him to sell in excess of 60 days  of  leave  during  his
military career.

AFPC/DPPD  stated  that  they  are  unaware  of  any  directives  that
stipulate that a member should be additionally monetarily  compensated
from  the  military  service  for  periods  while  hospitalized  in  a
veteran’s hospital and  for  periods  of  unemployment  following  his
release from active duty, other than for normal service and disability
retirement benefits.

AFPC/DPPD stated that following their examination of the  files,  they
determined the applicant was treated fairly  throughout  the  military
disability evaluation  process,  that  he  was  properly  rated  under
federal disability guidelines, and that he was  afforded  a  full  and
fair hearing as required under military disability  laws  and  policy.
Based on the above information, they find no rationale why  he  should
receive additional monetary payments for periods  addressed  following
his release from active duty.  The care for veterans once  they  leave
active duty falls underneath the responsibility and charter of the DVA
under Title 38, United States Code (USC).  The medical aspects of this
case are fully explained by the Medical consultant and they agree with
his advisory.

A complete copy of the AFPC/DPPD evaluation at Exhibit D.

AFPC/DPSFM reviewed this application  and  noted  that  a  26  Sep  86
memorandum from the Office of the Assistant Secretary of  Defense  for
Professional Affairs and Quality Assurance clarified the leave  policy
for disability  separations  and  retirement  during  the  period  the
applicant retired.  It states, “individuals who have accrued leave  in
excess of 20 days and who cannot sell it back to the government may be
allowed to use it.”  According to AFPC/DPSFM,  the  applicant  clearly
sold the maximum of 60 days of leave upon his  retirement  and  should
have been afforded the opportunity to take  the  remaining  eight  (8)
days as terminal leave.

A complete copy of AFPC/DPSFM  evaluation,  with  attachments,  is  at
Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant provided a response, indicating that the two main points  of
his complaint have been ignored and described as  unclear.   A  highly
inflammatory communication was sent to the  medical  evaluation  board
without his knowledge.  He should have been given the  opportunity  to
respond.  This right is vital if the integrity of the system is to  be
believed.

As previously stated, he was moved directly from Travis AFB to  a  DVA
hospital while still on active duty.  He was  still  in  the  hospital
when he was placed on the TDRL.  This was an untenable situation  that
could only be confirmed if his DVA records are requested.  At the very
least, he should have remained on active duty until  he  was  released
from the hospital.

Regarding his leave situation, the applicant  indicated  that  his  DD
Form 214 showing he sold  65  days  of  leave  at  his  separation  is
inaccurate.  In fact, he accrued 65 days of leave,  of  which  30 days
were sold.  He had previously sold 30 days of  leave  earlier  in  his
career.  Therefore, he lost 35 days of leave when he separated.

In addition to the 35 days of leave he lost  at  separation,  he  lost
eight (8) days of leave at the end of Fiscal Year 1988 (FY88).   As  a
result, he had 68 days of accrued leave.   He  had  been  hospitalized
since Jul 88 and was unable to take the leave.

Applicant also indicated that the DD Form 214 failed to  show  an  MSM
that he was awarded.

Applicant’s complete response, with attachment, is at Exhibit G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

DFAS-POCC indicated that their records show  that  the  applicant  was
paid 30 days of accrued leave on 24 Jul 81 and 30 days on  28 Nov  88.
Effective 10 Feb 76, a military member can be paid  no  more  than  60
days of accrued leave during a military career.  If  the  member’s  DD
214 states he sold 65 days of leave, the information is incorrect  and
he should apply for a corrected DD 214.   According  to  DFAS-POCC,  a
total of 35 days of accrued leave was lost at his separation on 28 Nov
88.

A complete copy of the DFAS-POCC evaluation, with attachments,  is  at
Exhibit H.

AFPC/DPPD noted that AFR 35-4, Paragraph 5-22, dated 13 Dec 85, states
the Department of Defense (DOD)  policy  in  affect  at  the  time  of
individual’s disability processing  required  that  an  unfit  service
member be retired or separated within 20 calendar days of the approved
Secretarial memorandum.  However, subsequent  guidance  received  from
the Deputy  Assistant  Secretary  (Professional  Affairs  and  Quality
Assurance), dated  26  Sep  86,  later  relaxed  the  policy  allowing
individuals who had sold their 60 days of leave back to the government
to extend their date of retirement or separation date beyond  the  20-
day rule by the amount of days of leave they could not sell.  Up until
that time, individuals  undergoing  the  disability  process  who  had
accrued leave that they could not sell back or use simply lost it.

AFPC/DPPD indicated that having reviewed the veteran’s military  leave
account, along with the disability processing file, it was  determined
that an injustice occurred in the  establishment  of  the  applicant’s
date of placement on the TDRL.  It appears that he  should  have  been
released from active duty on 5 Jan 89 and placed on the TDRL effective
6 Jan 89, to take into account the 35 days of leave he originally lost
plus the 3 additional days he would have acquired  based  on  his  new
retirement date.

A complete copy of the AFPC/DPPD evaluation is at Exhibit I.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITONAL AIR FORCE EVALUATION:

Applicant provided a response indicating that it is his position  that
his name should not have been placed on the TDRL until he was released
from the DVA.  He is requesting an adjustment of his  separation  date
and compensation to reflect this.

Applicant’s complete response is at Exhibit K.

Applicant provided a subsequent response indicating that an adjustment
of  his  separation  date  raised  the  question  of  his   retirement
percentage.  He believes his retirement percentage  was  based  on  14
years of service, rather than on 14 years and 4 months of service, and
should be reviewed for accuracy.  He also reiterated his  belief  that
he should have been compensated for the time he was in a DVA  hospital
prior to his separation from the Air Force.

Applicant’s complete response is at Exhibit L.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice warranting corrective action regarding
the applicant’s request that he  receive  fair  remuneration  for  his
unsold leave.  Having carefully reviewed this  application,  we  agree
with the recommendation of AFPC/DPPD that the applicant be compensated
for the 35 days of accrued leave he lost at separation, as well as the
three additional  days  he  would  have  acquired  based  on  his  new
retirement date, and adopt  their  rationale  as  the  basis  for  our
decision that the applicant has been the victim of either an error  or
an injustice.  However, in addition  to  the  aforementioned  days  of
accrued leave, it appears that he lost eight (8) days of leave at  the
end of Fiscal Year 1988 (FY88)  resulting  from  his  hospitalization.
Therefore, we believe he should also be compensated  for  those  eight
(8) days he lost.  In  view  of  the  above,  we  recommend  that  the
applicant’s records be corrected as set forth below.

4.  In addition to the relief recommended  above,  we  note  that  the
applicant’s records indicate he sold 65 days of accrued  leave  during
his career.  However, it appears that he only sold 60 days of  accrued
leave.  Therefore, we believe  his  records  should  be  corrected  to
reflect the appropriate amount of accrued  leave  that  he  was  paid.
Accordingly, we recommend that the applicant’s records be corrected to
reflect that the number of days of accrued leave he was  paid  was  60
days, rather than 65 days.

5.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of  error  or  injustice  warranting  corrective  action
concerning the applicant’s request that he  receive  remuneration  for
the time he remained confined to DVA hospital, and that his disability
rating be changed.

      a.  The applicant's complete submission was thoroughly  reviewed
and his contentions were duly noted.  However,  we  do  not  find  the
applicant’s  assertions  sufficiently  persuasive  to   override   the
rationale provided by AFPC/DPPD regarding this matter.  Therefore,  in
the absence of sufficient evidence to the contrary, we agree with  the
recommendation AFPC/DPPD and adopt their rationale as  the  basis  for
our decision that the applicant has failed to sustain  his  burden  of
establishing that he has suffered either an  error  or  an  injustice.
Accordingly, we find no compelling basis to recommend favorable action
on his request.

      b.  The issue raised by the applicant concerning the  percentage
and computation of his disability retired  pay  was  noted.   In  this
respect, he asserts that his retirement percentage  of  base  pay  was
based on 14 years of service, rather than 14  years  and  4 months  of
service, resulting in a 30 percent disability rating, rather than a 35
percent disability rating.  The evidence of the record indicates  that
at the time his name was placed on the TDRL, he was credited  with  14
years, 4 months, and 17 days of active  service  for  retirement.   It
further indicates that he was credited with 14 years, 5 months, and 14
days for basic pay.  No evidence has been presented which  would  lead
us to believe that the applicant was inappropriately  rated,  or  that
the computation of his retired pay was inaccurate.   In  view  of  the
foregoing, and in the absence of sufficient evidence to the  contrary,
no favorable action is warranted regarding this matter.

6.  Applicant contends that his DD Form 214 failed to reflect award of
the MSM.  However, we  note  that  his  records  have  been  corrected
administratively to show award of the medal.   Therefore,  no  further
action is necessary.

_________________________________________________________________

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 not relieved from  active  duty  and  placed  on  the
Temporary Disability Retired List (TDRL), effective  28  Nov  88,  but
remained on active duty until 13 Jan 89, on which date he was relieved
from active duty and was placed on the TDRL, effective 14 Jan 89.

      b.  The Certificate of Release or Discharge from Active Duty, DD
Form 214, Item 17, be amended to read  that  the  number  of  days  of
accrued leave he was paid was 60 days, rather than 65 days.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 01-
03610 in Executive Session on 3 Dec 02 under the provisions of AFI 36-
2603:

      Mr. Joseph G. Diamond, Panel Chair
      Ms. Brenda Romine, Member
      Mr. James W. Russell III, Member

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

     Exhibit A.  DD Form 149, dated 12 Dec 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, Medical Consultant, dated 25 Jan 02.
     Exhibit D.  Letter, AFPC/DPPD, dated 4 Mar 02.
     Exhibit E.  Letter, AFPC/DPSFM, dated 7 May 02, w/atchs.
     Exhibit F.  Letter, SAF/MRBR, dated 24 May 02.
     Exhibit G.  Letter, applicant, dated 29 May 02, w/atch.
     Exhibit H.  Letter, DFAS-POCC/DE, dated 13 Sep 02, w/atchs.
     Exhibit I.  Letter, AFPC/DPPD, dated 3 Oct 02.
     Exhibit J.  Letter, SAF/MRBR, dated 11 Oct 02.
     Exhibit K.  Letter, applicant, dated 16 Oct 02.
     Exhibit L.  Letter, applicant, dated 28 Oct 02.




                                   JOSEPH G. DIAMOND
                                   Panel Chair










AFBCMR 01-03610




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.  He was not relieved from active duty and placed on the
Temporary Disability Retired List (TDRL), effective  28  Nov  88,  but
remained on active duty until 13 Jan 89, on which date he was relieved
from active duty and was placed on the TDRL, effective 14 Jan 89.

            b.  The Certificate of Release or Discharge from Active
Duty, DD Form 214, Item 17, be amended to read that the number of days
of accrued leave he was paid was 60 days, rather than 65 days.





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency