RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03857
            INDEX CODE:  137.02
            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  19 APRIL 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Survivor Benefit Plan (SBP) be validated.

2.  His retirement date of 1 November 2004 be changed to 1 December 2004  so
that his lost leave can be restored.

_________________________________________________________________

APPLICANT CONTENDS THAT:

During the months of July and August 2004 his squadron  was  experiencing  a
high volume/low  manning  situation  with  on-going  maintenance  demand  of
departing  and  returning  of  aircraft  and  its  personnel   from   combat
locations.  He lost 41 days of leave he was  unable  to  sell  back  because
years  ago  he  sold  back  60  days.   His  permissive/terminal  leave  was
scheduled from 2 September 2004 through 31 October 2004, when he planned  to
complete most of his remaining appointments.  However, his permissive  leave
request was disapproved  because  all  outprocessing  appointments  must  be
completed before permissive/terminal leave can begin  or  be  approved.   He
had already lost a considerable amount of  leave,  so  the  Retirements  and
Finance office suggested he request an extension  of  his  retirement  date.
His request was disapproved due to lack of information.  He resubmitted  his
request along with an in depth information letter from his  commander.   His
second request was disapproved for lack of processing time.

He is now officially retired, and requests his retirement  date  be  changed
to 1 December 2004 so he  can  receive  credit  for  the  41  days  of  lost
terminal leave.

In support of the application, the applicant submits an  e-mail  message,  a
letter from his commander, the Data for Payment of Retired  Personnel  form,
and a letter from SBP office.  The  applicant's  complete  submission,  with
attachments, is at Exhibit A.

_________________________________________________________________


STATEMENT OF FACTS:

Information extracted from  the  Military  Personnel  Data  System  (MilPDS)
indicates that the applicant’s Total Active Federal  Military  Service  Date
(TAFMSD) is 9 October 1980.  He retired on 1 November 2004.  On 9  September
2004, the Board granted a two-year  constructive  reenlistment  effective  1
November 2002 to establish a date  of  separation  of  31  October  2004  to
permit retirement on 1 November 2004.

The applicant married and  had  an  eligible  child  when  he  retired  from
military service on 1 November 2004, but he did not complete  the  documents
necessary to properly establish his retired pay account  (including  an  SBP
election) until after his retirement date.  Absent  a  valid  SBP  election,
the finance center established spouse  and  child  coverage  based  on  full
retired pay to comply with the law.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPFF recommends denial.  DPFF states a  review  of  the  applicant’s
pay file reflects he lost 45.5 days of terminal leave at the end  of  Fiscal
Year (FY) 2004.  He carried forward 45.5 days of leave at the end of FY  03.
 He used 30 days of leave during FY  04.   The  applicant  had  an  approved
retirement date of 1 November 2004.   The  evacuation  period  was  from  13
September 2004 and lasted until on/about 22  September  2004.   DPFF  states
AFI 36-3003, Military Leave Program,  note  below  para  10.9.7  states,  in
part, a member’s  application  must  clearly  establish  that  an  error  or
injustice by the Air Force caused the member’s  lost  leave.   Additionally,
para 6.7, Terminal Leave, is chargeable  leave  taken  in  conjunction  with
retirement  from  active  duty.   The  applicant’s  Commander   provided   a
statement asserting that due to Hurricane Ivan, the applicant was unable  to
outprocess in a timely manner and the delay in outprocessing  prevented  the
applicant from  being  placed  on  terminal  leave.   Reference  AFPC/DPPPRR
email, the applicant applied and was approved for retirement since  16  July
2004 which was ample time for outprocessing.  DPFF notes although  Hurricane
Ivan hit, the applicant had ample time to outprocess (30  days)  during  the
month of October.  Although  the  applicant  experienced  some  interruption
during this time it did not prevent  him  from  outprocessing  in  a  timely
manner prior to Hurricane Ivan.  DPFF’s evaluation, with attachment,  is  at
Exhibit C.

HQ AFPC/DPPRRP recommends denial.  DPPRRP states in  an  interim  change  to
AFI 36-3203, Service Retirements, para 2.20, the high year tenure (HYT)  for
TSgts was changed from 22 Years of Service (YOS) to 24 YOS.   DPPRRP  opines
the applicant knew he was obligated to request retirement on the  first  day
of the month after the month in which he reached his HYT or be separated  on
that date.  The applicant’s HYT  was  31 October  2004  and  he  could  have
applied for retirement a year in advance of his HYT and not waited until  16
July 2004 to apply.  If he was waiting to see if he  would  be  promoted  to
master sergeant before applying for retirement, AFI  36-3203,  para  2.21.3,
allows withdrawal or extension of  an  approved  retirement  date  based  on
promotion.  DPPRRP opines there was no reason  for  the  applicant  to  have
delayed applying to retire on his HYT.

DPPRRP notes upon his retirement request  of  16  July  2004,  eight  months
after  he  could  have  requested  retirement,  the  applicant  signed   the
following statement, included on his preapplication checklist  in  paragraph
A7.3 (atch 3) which  states:   “I  understand  that  I  may  not  extend  my
approved retirement date, or withdraw my application, solely to allow me  to
take terminal leave.”  On 29 October 2004,  two  days  before  his  approved
retirement date at his  HYT,  the  applicant’s  MPF  faxed  the  applicant’s
request to change his approved retirement date.  DPPRRP  responded  to  this
request “Member’s request to extend  approved  retirement  is  disapproved.”
Retirement effective 1 November 2004  remains  firm  and  special  order  is
valid.”  On 3 November 2004, the MPF again faxed the request to  change  the
applicant’s approved retirement date from 1  November  2004  to  1  December
2004.  On 17 November 2004,  the  superintendent  of  HQ  AFPC  Retirement’s
Branch responded to this request by e-mail which  clearly  states  that  the
applicant had sufficient time to outprocess between the date his  retirement
was approved on  12  August  2004,  and  his  approved  retirement  date  of
1 November 2004.

DPPRRP opines the applicant knew his HYT was 24 YOS and,  knowing  that,  he
could have requested retirement as early as November 2003.  The  reason  why
he waited until 16 July 2004 to apply for retirement is not  known,  but  it
is clear that the applicant made no attempt to request retirement  or  begin
retirement processing by taking into consideration his leave  balance.   The
evacuation between  13  September  2004  and  22 September  2004  is  of  no
consequence because the applicant was to have begun his  PTDY  and  terminal
leave on 2 September 2004 and was to  have  completed  outprocessing  before
then.

DPPRRP recommends denial of any adjustment  to  the  applicant’s  retirement
date.  To allow adjustment of 30 days would mean that  the  applicant  would
have his TAFMSD adjusted by a month  (until  1 December  2004)  which  would
entitle the applicant  to  active  duty  basic  pay  for  that  time,  Basic
Allowance for Housing, 1 month of subsistence allowance, and 2.5  more  days
of annual leave.  Other members are not granted HYT extensions unless it  is
in the best interest of the Air  Force,  not  because  it  is  in  the  best
interest of the individual member and, certainly, not for that member to  be
allowed to use terminal leave.  DPPRRP’s evaluation,  with  attachments,  is
at Exhibit D.

HQ DPPTR recommends denial.  DPPTR states Public Law  (PL)  99-145  requires
spouses of married members to  concur  in  writing  prior  to  the  member’s
effective date of retirement in SBP elections that provide  less  than  full
spouse coverage.  When a member fails to make  a  valid  election  prior  to
retirement, the Defense  Finance  and  Accounting  Service-Cleveland  Center
(DFAS-CL) establishes SBP coverage at the maximum  level  for  all  eligible
beneficiary(ies) to comply with the law.

DPPTR notes the applicant failed to respond to their 24  March  2005  letter
requesting he submit a notarized statement signed by his wife  acknowledging
that she understands that if his record is corrected, SBP annuity  currently
valued  at  no  less  than  $862  would  be  reduced  to  $550  per   month.
Furthermore, unless the member’s retirement date is corrected,  approval  of
this request, even with his wife’s  properly  completed  concurrence,  would
provide the member an opportunity not afforded other  retirees  and  is  not
justified by the facts of this case.  DPPTR’s evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were  forwarded  to  the  applicant  for
review and comment on 29 April 2005.  As  of  this  date,  this  office  has
received no response (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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.

    a.  The applicant asserts  he  was  unable  to  take  leave  because  of
military necessity and therefore his retirement date should be  extended  to
accommodate 41 days of  leave  he  lost  at  retirement.   After  thoroughly
reviewing the documentation applicant submitted in support  of  his  appeal,
we do not believe the evidence provided is sufficient  to  substantiate  his
claims.  We have noted the evaluations of  the  applicant’s  contentions  by
the Air Force offices of primary responsibility  and  we  are  in  agreement
with their assessments.  In the absence  of  evidence  that,  in  our  view,
successfully refutes the evaluations of this case,  we  find  the  applicant
had ample opportunity to use his leave prior to his retirement.

    b.  As to the applicant’s request to validate his SBP, we  do  not  find
the evidence provided supports findings of error or injustice  with  respect
to his issue.  It appears  the  applicant  is  asserting  that  he  was  not
properly counseled concerning the requirements  of  the  SBP  prior  to  his
retirement.  However, other than his own  assertions,  he  has  provided  no
evidence substantiating this claim, nor did  he  provide,  upon  request,  a
notarized statement signed by  his  spouse  concerning  the  impact  of  the
acceptance  of  his  belated  election.   We  note  the  applicant  may,  in
accordance with law, elect to terminate his SBP coverage between the  second
and third anniversary of his receiving retired pay, if he obtains a  written
agreement from his spouse concurring with  the  decision  to  terminate  the
coverage.  In view of the foregoing, we agree  with  the  recommendation  of
the Air Force (HQ AFPC/DPPTR) and  adopt  the  rationale  expressed  as  the
basis for our decision that the applicant has failed to sustain  his  burden
of having suffered either an error or an injustice.

    c.  Accordingly, in view of the above, we have  no  basis  on  which  to
favorably consider the requested relief.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 7 July 2005, under the provisions of AFI 36-2603:

                       Mr. Michael J. Novel, Panel Chair
                       Ms. Kathy L. Boockholdt, Panel Member
                       Ms. Marcia J. Bachman, Panel Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2005-00792.

      Exhibit A.  DD Form 149, dated 03 Dec 04 w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, HQ AFPC/DPFF, dated 09 Mar 05.
      Exhibit D.  Letter, HQ AFPC/DPPRRP, dated 10 Mar 05 w/atchs.
      Exhibit E.  Letter, HQ AFPC/DPPTR, dated 22 Apr 05.
      Exhibit F.  Letter, SAF/MRBR, dated 29 Apr 05.





            MICHAEL J. NOVEL
            Panel Chair