RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00642
            INDEX NUMBER:  121.00
      XXXXXXXXXXXXX    COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement date be changed from 1 Feb 03 to 1 May 03 in  order  to
use the 68 days of leave he had accrued.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He initially requested a retirement date of 1 Feb 03 and  was  briefed
that he could sell the 68 days of leave he had accrued.  He questioned
this as he had previously heard that he could only sell 60 days  in  a
career and had previously sold 60  days.   He  was  advised  that  the
limitation did not apply to leave sold during retirement.

Due to  circumstances  beyond  his  control,  he  requested  that  his
retirement date be changed to 1 May 03.  His request was denied on  30
Jan 03 and he had to out process by 31 Jan 03.  It was  then  that  he
learned that he would also lose his accrued leave.   If  he  had  been
properly advised, he never would have requested a retirement date of 1
Feb 03.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 29 Jul  81.   He
retired effective 1 Feb 03 with 21 years, 6  months,  and  2  days  of
service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSFM  recommends  approval  of  the  applicant’s  request.   The
applicant received an e-mail from the  Finance  Service  Office  (FSO)
stating that he was miscounseled at the time of his  retirement.   The
applicant lost 65 days of leave when he  retired  on  1  Feb  03.   He
brought 58 days forward from FY02 to FY03; he earned 10 days of  leave
during FY03 and used 3 days of leave.   AFI  36-3003,  Military  Leave
Program, Para 4.6 limits payment for accrued leave to  60  days  in  a
career.  Based on the miscounseling, the applicant’s  retirement  date
should be adjusted to include the 65 days of lost leave.

The complete evaluation is at Exhibit C.

AFPC/DPPRRP recommends that the applicant be paid for the 65  days  of
lost leave rather than adjusting his date of retirement.  They provide
their rationale in discussing the two options:

          a.  Allow payment of the 65 days of annual leave rather than
adjusting applicant’s effective date of retirement.  This would be  an
exception to Title 37, United States Code, Section  501  and  AFI  36-
3003, Military Leave Program, which states members are only allowed to
sell 60 days annual leave during a military career.

          b.  Adjust the applicant’s effective date of  retirement  to
compensate him for the 65 days of lost leave.  The effective  date  of
all nondisability retirements is set by Title 5, United  States  Code,
Section 8301, as the first day of the month after the month  in  which
retirement otherwise would be effective.  Therefore,  the  applicant’s
retirement date would have to be adjusted from 1 Feb 03 to 1 May 03 to
compensate him for the 65 days of lost annual leave.  This  adjustment
would credit the applicant with 89 days active duty and result in  him
receiving an additional 24 days of unserved active duty credit.

The complete evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the evaluations were forwarded to the applicant  for  review
and comment within 30 days.  To date a response has not been received.

_________________________________________________________________

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 error or  injustice.   We  concur  with  the  Air  Force’s
determination  that  the  applicant  was  miscounseled  regarding   his
entitlement to sell leave and that some  relief  is  warranted.   After
weighing  AFPC/DPSFM’s  recommendation  to   adjust   the   applicant’s
retirement date to include 65 days  of  lost  leave  and  AFPC/DPPRRP’s
recommendation to pay the applicant for the lost leave, we  believe  an
alternative approach that incorporates the two recommendations  is  the
most appropriate.   However,  we  note  that  since  the  applicant  is
precluded by law from selling additional leave beyond the 60 previously
sold, being paid an equivalent amount through an authorized entitlement
is the only way he can be compensated for his unused leave.  The  Board
only employs such a correction where the alternative would be  a  clear
injustice to the applicant.  The Board believes that the  circumstances
of this case support such an action.  In this case, had  the  applicant
not been miscounseled, in order to retire by 1 Feb 03 and not lose  his
leave, he could have started terminal  leave  approximately  two  weeks
after the 14 Nov 02 date his request for retirement was approved.   His
other option would have been to request a  later  retirement  date  and
take an appropriate amount of terminal leave to utilize  his  available
balance.  The applicant has indicated that he would  have  requested  a
later retirement date,  which  would  have  extended  his  active  duty
service.  Since we have no basis to doubt his statement, we believe the
most appropriate relief would be to  extend  his  retirement  date  and
place him in a terminal leave status.  However, as pointed out  in  the
evaluation prepared by AFPC/DPPRRP, to extend his retirement date to  1
May 03, as requested by the applicant, would result  in  his  receiving
credit for unserved active duty time.  In our view, a  correction  that
is both fair to the applicant and  the  Air  Force  is  to  extend  his
retirement date to 1 Apr 03 and compensate him for his remaining  leave
balance.  By extending his retirement date to 1 Apr 03,  the  applicant
earns an additional 5 days of leave resulting in a balance of  70  days
vice the 65 reflected in the  Air  Force  evaluations.   Extending  his
retirement date to 1 Apr 03 would require him to be in  terminal  leave
status for 59 days and would leave a balance of 11 days.  Therefore, it
is our recommendation that the  applicant’s  records  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.  He was in a temporary duty status for a  sufficient  number
of days beginning 2 January 2003 and was entitled to  per  diem  in  an
amount equivalent to eleven (11) days of basic pay.

        b.  He was not retired effective 1 February 2003, but continued
on active duty in a terminal leave status until 31 March 2003, on which
date he was relieved from active duty and retired for sufficient length
of service effective 1 April 2003.

_______________________________________________________________

The following members of the Board considered  Docket  Number  BC-2003-
00642 in Executive Session on 4 September 2003, under the provisions of
AFI 36-2603:

      Ms. Patricia D. Vestal, Panel Chair
      Ms. Nancy Wells Drury, Member
      Mr. Robert H. Altman, Member

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

     Exhibit A.  DD Form 149, dated 19 Feb 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPSFM, dated 16 Jun 03.
     Exhibit D.  Memorandum, AFPC/DPPRRP, dated 24 Jun 03.
     Exhibit E.  Letter, SAF/MRBR, dated 3 Jul 03.



                                   PATRICIA D. VESTAL
                                   Panel Chair


AFBCMR BC-2003-00642


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 XXXXXXXXXXXX, XXX-XX-XXXX, be corrected to show
that:

              a.  He was in a temporary duty status  for  a  sufficient
number of days beginning    2 January 2003 and was entitled to per diem
in an amount equivalent to eleven (11) days of basic pay.

              b.  He was not retired effective  1  February  2003,  but
continued on active duty in a terminal  leave  status  until  31  March
2003, on which date he was relieved from active duty  and  retired  for
sufficient length of service effective 1 April 2003.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency