RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01286
            INDEX CODE:  121.03

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be compensated for 43 days of accrued leave he lost at the  end  of
Fiscal Year 1999 (FY99) and for four additional days of active duty.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was unable to start terminal leave because of  the  return  of  his
cancer prior to the scheduled date.  He was told  to  return  to  work
until the Medical  Evaluation  Board  (MEB)  convened,  and  that  his
retirement date would be adjusted to account for the days of leave  he
had to take or sell.  This did not happen.   Instead,  his  retirement
was processed on 1 Apr 04 even though he  was  on  temporary  duty  to
Nellis AFB, leaving him with 73 days, of which 30 days he was  allowed
to sell back.

In support of his appeal, the applicant provided a personal  statement
and extracts from his military personnel records.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 17 May  83.   On 31 Mar
04, he was relieved  from  active  duty  and  retired  for  length  of
service, effective 1 Apr 04, in the grade of master sergeant.  He  was
credited with 20 years, 10 months, 14 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSFOC recommended relief be granted indicating the applicant had
originally planned to use all of his accrued leave as terminal  leave.
He had an approved retirement date of  1 Apr 04  and  had  planned  to
start his permissive temporary duty (PTDY)/terminal leave on or  about
2 Jan 04.  On 9 Jan 04, the applicant underwent a Computed  Tomography
(CT) scan and received the results of the scan on  29  Jan  04,  which
indicated he had cancer.  He informed the Primary Care Manager of  his
condition and his desire to be placed  on  medical  hold  pending  the
outcome of his treatment.  There was no indication the  applicant  was
placed on medical hold pending the outcome of his treatment.  He never
received clear instructions as to  what  action  was  required  to  be
placed on medical hold.  They believe the applicant’s retirement  date
should be adjusted to include his days of lost leave,  the  period  he
worked, and any leave he would have accrued over  that  period  for  a
total of 51.5 days.

A complete copy of the AFPC/DPSFOC evaluation, with attachments, is at
Exhibit C.

AFPC/DPAMM indicated the applicant’s Primary  Care  Manager  contacted
their office on 30 Jan 04 to request medical hold.   However,  medical
hold was disapproved on the  basis  the  applicant’s  condition  could
hopefully be stabilized or resolved prior to his retirement.   An  MEB
was requested and convened  on  23 Feb  04,  and,  on  10  Mar  04,  a
recommendation  was  made  to  return  the  applicant  to  duty   with
assignment limitations.  At no time was the applicant ever  placed  on
medical hold.

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

AFPC/DPPRRP recommended denial indicating  the  applicant’s  unit  was
confused about the applicant’s exact status, evidenced by sending  him
TDY for 33 days, effective 9 Mar 04, well after his PTDY and  terminal
leave had begun.  If the applicant had been on medical hold, he  would
have been barred from deployment.  There was no evidence the applicant
officially requested to  cancel  his  PTDY  and  terminal  leave.   By
returning to work, the applicant led the unit commander to believe his
retirement had been canceled.

AFPC/DPPRRP stated that if  relief  is  granted,  they  recommend  the
applicant be compensated for his unused leave, rather  than  adjusting
his retirement date.

A complete copy of the AFPC/DPPRRP evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory  opinions  and  furnished  a  response
indicating he never misled his unit about his status.   There  was  no
lack of retirement planning on his part.  He had to cancel  three  job
interviews after being told to return to  work.   He  had  no  way  of
knowing the cancer would come back.  He was told  to  return  to  work
until the outcome of the MEB, as he  was  not  medically  cleared  for
retirement prior to starting his terminal leave.   He  reiterated  his
belief he should be compensated for his lost leave.

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

_________________________________________________________________

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 injustice.  The evidence of record indicates  that  after
applying for and prior to his date of retirement  of  1  Apr  04,  the
applicant underwent a CT scan that revealed his cancer  had  recurred.
He was scheduled to  start  his  PTDY/terminal  leave  on  2  Jan  04.
However, after consultation with his Primary Care Manager and the MPF,
he subsequently went back to work believing  his  PTDY/terminal  leave
would be canceled and he would be placed on medical hold and have  his
retirement date extended.   The  applicant’s  commander  supports  his
appeal, indicating she was under the impression  the  applicant  would
not be starting his PTDY/terminal leave while undergoing treatment for
his cancer, and that his retirement was  going  to  be  delayed.   She
personally observed the applicant at work.  He was also sent TDY for a
number of days, which included several days beyond his effective  date
of retirement.  According to the commander, the fact the applicant had
been retired on 1 Apr  04  came  as  a  complete  surprise.   After  a
thorough review of the facts and circumstances of this  case,  we  are
persuaded that corrective action is warranted.  Although the  evidence
indicates the applicant actually returned to work, it appears  he  was
charged 43.5 days of terminal leave, after being allowed to sell  back
30 days of 73.5 days  of  leave.   It  also  appears  he  worked  four
additional days beyond his retirement date.   Based  on  the  evidence
presented, we believe sufficient doubt has been raised whether he  was
properly advised regarding his situation.   In  our  view,  any  doubt
should be resolved  in  favor  of  the  applicant.   In  view  of  the
foregoing and to remove the possibility of an injustice, we  recommend
the applicant’s records be corrected to the extent  set  forth  below,
which we believe is proper and fitting relief.

_________________________________________________________________

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 in a temporary
duty status for a sufficient number of days and  was  paid  total  per
diem in an amount equivalent to 47.5 days of basic pay.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-01286 in Executive Session on 6 Oct 04, under the  provisions  of
AFI 36-2603:

      Mr. Charles E. Bennett, Panel Chair
      Ms. Barbara R. Murray, Member
      Mr. Albert C. Ellet, Member

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

     Exhibit A.  DD Form 149, dated 16 Apr 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPSFOC, dated 28 Jun 04, w/atchs.
     Exhibit D.  Letter, AFPC/DPAMM, dated 1 Jul 04.
     Exhibit E.  Letter, AFPC/DPPRRP, dated 12 Jul 04.
     Exhibit F.  Letter, SAF/MRBR, dated 23 Jul 04.
     Exhibit G.  Letter, applicant, dated 18 Aug 04, w/atchs.




                                   CHARLES E. BENNETT
                                   Panel Chair








AFBCMR BC-2004-01286




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 he was in a temporary
duty status for a sufficient number of days and was paid total per
diem in an amount equivalent to 47.5 days of basic pay.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency