RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2002-04097

			COUNSEL:  None

			HEARING DESIRED:  No
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APPLICANT REQUESTS THAT:

His retirement date of 8 December 2002 be changed to 8 January 2003 to allow him to take his 30 days of leave.
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APPLICANT CONTENDS THAT:

He originally retired from active duty on 1 July 1996 in the grade of colonel.  As a result of the terrorist attack on America on 11 September 2001, he was recalled to active duty effective   8 December 2001 for twelve (12) consecutive months to serve as the Battle Commander of the ---- Air Defense Sector (Atch 1).  On 18 October 2002, 1 AF/CC requested a 60-day extension to his recall to active duty (Atch 2).  

On 5 November 2002, ACC/DPO notified 1 AF/CC of ACC/CV’s disapproval of his extension to active duty recall.  Due to operational requirement for his service, he was unable to take terminal leave prior to 8 December 2002.  Also Air Force Senior Leader Management Office provided written guidance (Atch 3) that he could sell back his 30 days of leave, even though he had sold back his lifetime quota of 60 days when he originally retired on 1 July 1996.  During his final out-processing interview with Tyndall AFB Finance Office, on 3 December 2002, he was informed that the Air Force could not pay him for 30 days of leave he earned during this year while on recall to active duty.  Finance cited AFI 36-3003 (Atch 4) as the source authority for their refusal to pay for his leave.

Needless to say, he is between a rock and a hard place.  He willingly answered his country’s call to duty and served honorably during his recall.  He respectfully requests that the Air Force amend his retirement date by 30 days to 8 January 2003 to allow him his due pay and allowances.  

In support of the applicant’s request, he submits a copy of Department of the Air Force Air Reserve Personnel Center, Special Order AM-----, Staff Summary Sheet, 18 Oct 02, Letter from ACC/CV, Letter from Air Force Senior Leader Management Office, a copy of Title 37, Chapter 9, Section 501, AFI 36-3003, a leave and earning statement and Department of the Air Force Special Orders AL---.

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

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STATEMENT OF FACTS:

Applicant was originally retired from active duty on 1 July 1996 in the grade of colonel after serving 25 years and 9 days.  

On 10 December 2001, Department of the Air Force Air Reserve Personnel Center, by Special Order AM----, involuntarily ordered the applicant to extended active duty for 12 consecutive months.  

On 22 November 2002, Department of the Air Force, Special Order AL-----, relieved the applicant from active duty on 7 December 2002 and reverted him to the USAF Retired List effective         8 December 2002.  The applicant’s total active military service for pay was corrected to reflect 26 years, and 26 days.

Applicant was advised of Title 37 entitlements on 10 October 2002.  Based on this, he took no further action to take leave prior to his date of separation.

1 AF/CC submitted memorandum to ACC/CV requesting a 60-day involuntary extension on the applicant.  On 5 November 2002, ACC/CV disapproved this request.  Applicant was advised during his out-processing appointment with servicing Financial Services Office that he could not sell back his 30 days of leave and referenced AFI 36-3003.

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AIR FORCE EVALUATIONS

AFSLMO/SU recommends the AFBCMR disapprove the applicant’s request to extend retirement date from 8 December 2002 to        8 January 2003.  This would require the Air Force to extend member’s date of separation and override ACC/CC’s decision.  Recommend that the AFBCMR allow the member to sell back his 30 days of leave in addition to the 60 days sold during his original retirement date.

Title 37, Chapter 9, Section 501 para (3) states “Payment may not be made to a member of any leave he elects to have carried over to a new enlistment in any uniformed service on the date after the date of his discharge; but payment may be made to a member for any leave he elects not to carry over to a new enlistment.  However, the number of days of leave may not exceed 60 days, less the number of days for which payment was previously made under this section after February 1996.”

“Paragraph (5) - The limitation in the second sentence of paragraph (3) and in subsection (f) shall not apply with respect to accrued - (C) by a retired member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps or a member of the Fleet Reserve of Fleet Marine Corps Reserve while the member is serving on active duty in support of a contingency operations.” 

Paragraph (b1) states “A member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or National Oceanic and Atmospheric Administration, who has accrued leave to his credit at the time of discharge, is entitled to be paid in cash or by a check on the Treasured of the United States for such leave on the basis of the basic pay to which he was entitled on the date of discharge.

AF/JAG gave an advisory opinion regarding Title 37, United States Code 501 (b) (5) (C), and stated that “If it is determined that the member was serving on active duty in support of a contingency operation, then any leave accrued during that period can be sold back.”

AFSLMO/SU complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 14 February 2003 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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 error or injustice.  After reviewing the evidence of record, we are convinced that the applicant was unable to take leave during his involuntary recall to active duty to support crisis operations under Operation NOBLE EAGLE and believe that relief is warranted in this matter.  Therefore, in an effort to afford the applicant full, yet fair relief for the loss of 30 days of leave, we resorted to a “creative” form of records correction.  Pursuant to our request, the Defense and Finance Accounting Service computes the amount of money the applicant would receive for a fictitious temporary duty equating to the dollar value of 30 days of leave at his grade and rank.  This form of correction would afford the applicant full and fair compensation without the adverse effect of either an offset or a windfall.  In view of the above, we recommend that the applicant be afforded relief by correcting his record as 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 he was in a temporary duty status for a sufficient number of days beginning  1 July 2002 and was paid total per diem the equivalent of thirty (30) days of basic pay.  

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The following members of the Board considered Docket Number BC-2002-04097 in Executive Session on 15 July 2003, under the provisions of AFI 36-2603:

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

	Exhibit A.	DD Form 149, dated 23 Dec 02, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFSLMO/SU, dated 3 Feb 03.
	Exhibit D.	Letter, SAF/MRBR, dated 14 Feb 03.

		

AFBCMR BC-2002-04097

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 APPLICANT, be corrected to show that he was in a temporary duty for a sufficient number of days beginning 1 July 2002 and was paid total per diem the equivalent of thirty (30) days of basic pay.