RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03242
            INDEX CODE:  108.00,121.00
            COUNSEL:  NONE
            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Her length of service retirement be changed to a medical retirement.

2.  She receive recoupment for 72.5 days of leave.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 8 October 2001 she had fibroid surgery.  Two days later, she  suffered  a
pulmonary embolism due to complications from that  surgery.   As  a  result,
she spent the next 337 days on  a  4T profile.   According  to  AFI  41-210,
paragraph 10.3.1., she should have met a  Medical  Evaluation  Board  (MEB).
From October 2001 to present, there has been a systematic  unwillingness  by
the medical  community  to  abide  by  the  requirements  specified  in  the
regulations to elevate her case through an MEB.  Throughout her records,  it
documents  how  she  was  strung  along  with  repeated  convalescent  leave
periods.

The most egregious violation occurred while she was  serving  in  the  653rd
CLSS, which is a deployable unit.  The commander and first sergeant  exerted
extreme pressure on her and a number of other  individuals  to  get  off  of
their profiles in order for them to be deployable.  In March 2005,  she  was
removed from her profile and  two  weeks  later  she  was  deployed  to  the
desert.

The pulmonary embolism she suffered in October 2001 was only  the  beginning
of a long list of physical challenges that have come her way in the  ensuing
six years.  She has always  maintained  high  physical  standards,  but  the
years of surgical procedures and medication have taken their toll.

While on terminal  leave,  she  had  an  emergency  hysterectomy  due  to  a
partially torn and ruptured cyst on her right  ovary.   Based  on  her  slow
recovery  from  that  surgery  and  her  previous   medical   history,   her
gynecologist recommended to AFPC/DPAMM that she be placed on  medical  hold.
His request was denied.  As a result, she was never able  to  take  terminal
leave.  She was forced into a situation  where  she  could  only  sell  back
50 days of leave since she had sold back 10 days of leave previously in  her
career.  Incidentally, in this case, a Line of Duty Determination (LOD)  was
not done until nearly three months later and profile documentation  was  not
done at all.

In support of her request, the  applicant  provided  a  personal  statement,
character  reference  letters,  documentation  extracted  from  her  service
medical records, and AF Forms 988, Leave Request/Authorization.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 2 November 1984, applicant entered active duty.  On  31 August  2007  she
was relieved from active duty and retired from the Air Force on  1 September
2007 in the grade of master sergeant.  She served  23 years,  9  months  and
29 days on active duty.

Applicant carried forward 60 days leave  during  Fiscal  Year  2007  (FY07).
She earned 27.5 days leave during FY07.  She used 15 days during FY07.   She
was paid for 10 days leave on 2 June 2000.  She  was  paid  for  50 days  of
leave on 31 August 2007, maximizing the total days a member may be paid  for
in a military career.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military personnel records,  are  contained  in  the  letter
prepared by the appropriate office of the Air Force at Exhibit B.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends  denial.   The  Medical  Consultant
states the applicant was given a length of service retirement on  31  August
2007.  The presence of a medical condition does  not  automatically  entitle
an individual to compensation.  The condition would have to  be  established
as stable, permanent and actually disabling regarding a predominance of  the
applicant’s duties.  Under  Title  10,  only  disabilities  that  cause  the
termination of military service can be rated and compensated, and then  only
for the degree of impairment at the time of  separation  and  not  based  on
future events.  At  the  time  of  her  discharge,  the  applicant  did  not
manifest conditions that warranted referral into the  Disability  Evaluation
System (DES).

The applicant has had several significant medical  problems  that  could  be
disabling, but fortunately recovered without significant sequellae  and  was
able to complete a successful military career.  At the time  of  her  length
of service retirement, there was no indication of any  disabling  condition.
The evidence of record indicates that she was a top-notch  performer  up  to
the time of her length of service  retirement.   The  issue  of  having  her
terminal leave cancelled because she was placed on convalescent leave,  thus
not being permitted to be on two different leave statuses at the same  time,
is an issue to  be  pursued  by  personnel  consultants.   Medical  hold  to
preserve terminal leave was not the proper avenue to pursue.

The preponderance of evidence of  the  record  shows  that  the  applicant’s
condition (pulmonary embolus) did require a MEB during the  recovery  period
in 2001, but would likely have resulted in a return to duty decision.  As  a
result, no compensation should be awarded as she recovered and was  able  to
continue active duty service.  Action  and  disposition  in  this  case  are
otherwise  proper  and  equitable  reflecting  compliance  with  Air   Force
directives that implement the law.

The complete BCMR Medical Consultant's evaluation is at Exhibit B.

AFPC/DPSIM recommends partial approval  and  that  22.5  days  of  leave  be
restored.  DPSIM states  AFI  36-3003,  Military  Leave  Program,  paragraph
10.9.7, states in part, that a member’s application must  clearly  establish
that an error  or  injustice  by  the  Air  Force  caused  the  lost  leave.
Additionally, paragraph 4.1.4, Use of Leave,  recommends  members  be  given
the opportunity to take at least one leave period of 14 consecutive days  or
more each FY and encourages them to use the 30 days  of  leave  they  accrue
each year.  Title 10, U.S.C., Section 501, is the authority for  payment  of
accrued leave upon  reenlistment,  retirement,  separation  under  honorable
conditions or death.  It limits payment of accrued leave to  60  days  in  a
military career.  Cumulative  payment  for  accrued  leave  as  an  enlisted
member, officer, or both cannot exceed 60 days.  The applicant was paid  for
a total of 60 days leave.  Her ending leave balance was 22.5 days.

AFPC/DPSIM’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 February 2008, the evaluation  was  forwarded  to  the  applicant  for
review and comment within 30 days  (Exhibit  D).   As  of  this  date,  this
office has received no response.

_________________________________________________________________

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 an error or injustice warranting the requested  relief.   After
a thorough review of the evidence of record and the documentation  submitted
in support of her appeal, we find no  evidence  that  at  the  time  of  her
separation from the Air Force, a condition existed that rendered her  unable
to perform the duties commensurate with her grade and position, as  required
for processing through the disability evaluation system.  While  it  appears
that she may have qualified for MEB processing in  2001,  as  noted  by  the
AFBCMR Medical Consultant, it appears that the resultant  disposition  would
have left her in the same position  she  is  in  today.   Therefore,  absent
persuasive evidence that a physical disability existed at the  time  of  her
separation  warranting  a  finding  of  unfitness  in  accordance  with  the
governing Air Force instruction, which implements the  law,  we  finding  no
compelling basis to disturb the existing record.

4.  Notwithstanding the above, regarding her request for recoupment  of  the
72.5 days of leave she earned, the majority of the  Board  finds  sufficient
relevant evidence of an error or injustice warranting partial relief.   Data
extracted from documentation made available to this Board reflects that  the
applicant had accumulated 72.5 days of leave, sold back  50  days  upon  her
retirement from the Air Force, and we have  been  informed  by  the  Defense
Finance and Accounting Services Center (DFAS) that she used  seven  (7) days
of terminal leave from 25 through 31 August 2007.   Therefore,  it  appears,
she only lost a total of 15.5 days of leave.  Title 10, U.S.C., Section  501
precludes payment in excess of 60 days of leave.   The  majority  considered
extending her retirement date in  order  to  effect  compensation;  however,
doing so would credit her with time not served, essentially resulting  in  a
windfall of increased retirement pay for the rest of  her  life,  which  the
majority believes would not be in the  best  fiscal  interests  of  the  Air
Force.  Therefore, in an effort  to  afford  the  applicant  full  and  fair
relief for the loss of the 15.5 days  of  leave,  the  majority  believes  a
"creative" form of records  correction  is  appropriate.   Pursuant  to  our
recommendation, the Defense Finance and Accounting Service will compute  the
amount of money she would receive from a fictitious temporary duty  equating
to the dollar value of 15.5 days of leave.  This form  of  correction  would
afford the applicant full and fair compensation without the  adverse  effect
of a windfall. Accordingly, the Board majority  recommends  her  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 she was in a temporary  duty  status
for 15.5 days beginning  3  May  2007  and  was  paid  total  per  diem  the
equivalent of 15.5 days of basic pay.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 27 March 2008, under the provisions of AFI 36-2603:

                 Mr. Gregory A. Parker, Panel Chair
                 Mr. Anthony P. Reardon, Member
                 Ms. Jan Mulligan, Member

By a majority vote,  the  Board  recommended  to  correct  the  records,  as
recommended.  Mr. Reardon voted to deny the  applicant’s  request  but  does
not  desire  to  submit  a  minority  report.    The  following  documentary
evidence pertaining to AFBCMR Docket Number 2007-03242 was considered:

   Exhibit A.  DD Form 149, dated 28 September 2007, w/atchs.
   Exhibit B.  Letter, BCMR Medical Consultant,
                   dated 15 November 2007.
   Exhibit C.  Letter, AFPC/DPSIM, undated, w/atch.
   Exhibit D.  Letter, SAF/MRBR, dated 15 February 2008.
   Exhibit E.  Letter, Applicant, dated 11 March 2008, w/atchs.





                 GREGORY A. PARKER
                 Panel Chair





AFBCMR BC-2007-03242





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 XXX, be corrected to show that she was in a temporary duty
status for 15.5 days beginning 3 May 2007 and was paid total per diem the
equivalent of 15.5 days of basic pay.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency