RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00965
		INDEX CODE:  121.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Twenty-five (25) days of leave be added to his leave account commencing 1 October 1999.
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APPLICANT CONTENDS THAT:

In July of 1996 he was placed on appellate leave following a court-martial conviction.  The case was overturned in March 1999.  He was brought back to duty in August 1999.  Because of this he could not take the leave earned.

In support of the appeal, applicant submits a personal statement and documentation relating to the matter.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 23 July 1975.

In July of 1996, he was placed on appellate leave after a courts-martial conviction.  On 16 November 1996, applicant applied for retirement in lieu of a bad conduct discharge, but the Secretary of the Air Force declined to accept the application.  A General Court-Martial Order was issued and the sentence was approved except for the bad conduct discharge.  Applicant was placed on leave pending completion of the appellate review of the conviction.  On 9 March 1999, applicant’s conviction by General Court-Martial was set aside.  A rehearing was found to be impractical and the charge(s) were dismissed.  The case was overturned in March 1999.  A decision was not made to bring him back to duty until August 1999.  He was returned to active duty from appellate review leave.  On 30 August 1999, he applied for retirement to be effective 1 January 2000, which was his high year of tenure (HYT) of 24 years of active service for master sergeant.  His application for retirement to be effective        1 January 2000 was approved on 3 September 1999.

The applicant departed on terminal leave on 26 September 1999 with a leave balance of 97 days.  He was brought back on active duty for the sole purpose of out processing for retirement.  He was unable to take his leave because he did not have sufficient time to use the leave that was restored to his account before 1 October 2000.

The applicant had 85.0 days of leave at the end of Fiscal Year 1999.  On 1 October 2000, he lost 25.0 days because Title 10 USC 701 prohibits members from carrying more than 60 days into the next fiscal year.

Applicant retired from active duty on 31 December 1999.  He served 24 years 1 month and 21 days of active service.

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AIR FORCE EVALUATION:

The Chief, Field Operations Branch, AFPC/DPSFM, reviewed the application and states that the member should receive relief.  The retirement date should be adjusted to accommodate reimbursement for all pay and allowances.

A complete copy of the evaluation is attached at Exhibit C.

The Retirement Programs & Policy Section, AFPC/DPPRRP, reviewed the application and states that there are no provisions to extend an approved retirement for the sole purpose to be paid for accrued leave or to take terminal leave.

Applicant retired on the maximum HYT date authorized for MSgts.  There are no provisions of policy or regulation that allow an involuntary separation date to be extended due to a desire for terminal leave after the established HYT date.  Rather, the only provisions by regulation that allow extensions to these involuntary separation dates are for extreme hardship (not common to other retiring members with documented justification) or for the needs of the Air Force (as documented and justified by commanders).  Additionally, there are provisions by regulation that allow extension of the maximum HYT date by placing member on medical hold.  To allow an extension of an involuntary separation date (due to maximum HYT) for purposes of using leave would be patently unfair to all the remaining enlisted members retiring/separating on their HYT date who do not have this option available to them.  Therefore, they recommend denial of applicant’s request.

A complete copy of their evaluation, with attachments, is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states that there seems to be some misconception on what he is asking for from the Board.  He was not told about the lost days of leave until after he had taken them and received his pay and allowances.  When he departed on leave everything was correct and proper.  He’s not asking that his retirement date be changed or for any other finances be paid to him.  All he’s asking for is that the 25 days of leave be restored so that he does not have to continue to repay the government for them.  He did as he was told by the Air Force and now he’s having to struggle to pay for this when it was out of his control.  He states, if there is a way to restore the leave administratively and at no cost to the government he would greatly appreciate it.

A copy of applicant’s response is at Exhibit F.

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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 probable error or injustice.  After reviewing the evidence of record, we believe that the applicant was prevented from using his leave through no fault of his own.  In view of the fact that his court-martial conviction was set aside, we believe the applicant should have been provided the opportunity to use his leave.  In addition, we believe that the applicant should have been counseled concerning the amount of leave he had to use when he departed on terminal leave in September 1999.  As the record now stands applicant has been charged 25 days of excess leave, which under the circumstances of this case, is unjust.  Therefore, we recommend his records be corrected to the extend indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that twenty-five (25) days of leave were added to his leave account commencing         1 October 1999 and he was in regular, rather than excess, leave status during the period 6 December 1999 through 31 December 1999.

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The following members of the Board considered this application in Executive Session on 16 August 2001, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

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

   Exhibit A.  DD Form 149, dated 24 Mar 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPSFM, dated 18 May 01.
   Exhibit D.  Letter, AFPC/DPPRRP, dated 21 Jun 01, w/atchs.
   Exhibit E.  Letter, AFBCMR, dated 29 Jun 01.
   Exhibit F.  Applicant’s Response, undated.

                                   
                                   Panel Chair

AFBCMR 01-00965
INDEX CODE:  121.00

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 twenty-five (25.0) days of leave were added to his leave account commencing 1 October 1999 and he was in regular, rather than excess, leave status during the period 6 December 1999 through 31 December 1999.

		
		Director
		Air Force Review Boards Agency