RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2016-01386

						COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

1.  He be paid for 60 days of accrued leave.  

2.  He be paid $50,000 for satisfactory fulfilling the last two years of his Aviation Continuation Pay (ACP) contract.  

APPLICANT CONTENDS THAT:

1.  He was erroneously advised by his Air Force Finance Office that he had not sold any leave his entire career.  Based on that information, he decided to sell back 60 days of leave he had remaining instead of taking terminal leave.  This erroneous information was the result of pay data not properly transferring when the pay system was updated.  DFAS records showed a leave payment of 46.5 days was made on 15 Oct 95 when he transitioned from Active Duty to the Reserves.  No explanation of why he did not receive 13.5 days of leave upon retirement.  This is an injustice, because he would have taken 60 days terminal leave that he was entitled to when he retired.

2.  He did not receive the final two payments ($25K/total $50K) according to his ACP contract, even though he fulfilled the ACP contract requirements.  The Air Force improperly attempted to change the terms of the ACP contract after the contract was already in force.  

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

STATEMENT OF FACTS:

During the matter in question, the applicant was serving in the Air Force Reserve in the grade of lieutenant colonel (O-5).  

On 16 Feb 05, according to documents submitted by the applicant, he signed an ACP agreement for “Option A” - 48 through 60 months at $25,000/Yr.  Effective date of this agreement 1 Feb 05 and expiration date 31 Jan 10.  

On 29 Mar 07, the applicant’s Aviation Career Incentive Pay (ACIP), also known as “flight pay,” was stopped.  

On 31 Mar 13, the applicant was relieved from his present Reserve assignment, retired effective 1 Apr 13, and was credited with 23 years, 5 months, and 20 days of active service.

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C and D.

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends denial of the applicant’s request for 60 days of accrued leave pay.  They opined this application was not filed within three years of the discovery of the alleged error or injustice, or with due diligence, should have been discovered.  Notwithstanding the timeliness of the application, they submit that in a career, a member is authorized to sell a total of 60 day of accrued leave.  In accordance with (IAW) AFI 36-3003, Military Leave Program, (AFGM5) paragraph 4.6. “Payment for Accrued Leave. Title 37, U.S.C., section 501, is the authority for payment for accrued leave upon reenlistment, retirement, separation under honorable conditions, or death.  It limits payment of accrued leave to 60 days in a military career effective 10 Feb 76.  A military career includes former service in enlisted or officer status.  Cumulative payment for accrued leave as an enlisted member, officer, or both cannot exceed 60 days.  Based on Defense Finance and Accounting Service (DFAS) records the applicant sold 46.5 day of accrued leave on 15 Oct 95, which he contends he was not made aware of, until after he retired.  Therefore, they are recommending approval for payment of 13.5 days of accrued leave.  Payment of the 13.5 days of leave and the previous payment of 46.5 days of leave will equal a total of 60 days the Applicant has sold in his career.  The applicant has exhausted all other resources for obtaining payment for 60 days of leave.   

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit C.

AFPC/DPAA recommends approval of the applicant’s request he be paid the last two years of his ACP contract totaling $50,000.  They opined this application was not filed within three years of the discovery of the alleged error or injustice, or with due diligence, should have been discovered, and that the applicant should have contacted the Aviation continuation Pay program manager during the time of his contract regarding payment.  Notwithstanding timeliness, they determined he signed a 5-year ACP contract and received three of five payments.  His ACP contract payments stopped due to the stoppage of his ACIP, even though he remained on active duty and continued to hold his aeronautical rating.  According to guidance on the myPers website, “If you enter into an ACP agreement and subsequently lose eligibility for ACIP due to not maintaining flying gates, you will continue to receive annual ACP payments until agreement completion.  

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

While the applicant is pleased with AFPC/DPAA’s recommendation to honor his ACP contract and pay the final two installments of his ACP, he respectfully disagrees with AFPC/DP2SSM’s recommendation to not pay 60 days of accrued leave.  The applicant refutes that both of his applications were timely filed, less than three years after the dates of discovery.  He argues that the AFPC/DP2SSM does not address the main issue of injustice.  Their analysis failed to address that the DFAS office at the Pentagon made an error and gave him erroneous information which led him to sell his 60 days of accrued leave instead of using the leave as terminal leave.  This is an injustice.  Had he known he had received 46.5 days of accrued leave payment in 1995, he would have used his 60 days as terminal leave.  He has suffered monetary damage equaling 60 days pay ($20,068.80) for this Air Force error/mistake.  In support of his request the applicant provides a copy of a signed document of an official electronic pay printout as proof he was erroneously briefed that he had not sold any leave during his career.  

A complete copy of the applicant’s rebuttal w/atch is at 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.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant payment of 13.5 days of leave and for the last 2 years of his ACP Contract in the amount of $50,000.00.  Having carefully reviewing this application, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and adopt the rationale expressed as the basis for our conclusion the applicant has been the victim of an error or injustice.  We also note the applicant states DFAS provided him erroneous information leading him to believe he could sell back 60 days of leave.  Although the applicant states he does not remember that he sold 46.5 of leave in 1995, the evidence reflects that he did.  As pointed out by AFPC/DP2SSM, cumulative payment for accrued leave cannot exceed 60 days.  As such, it is our opinion the circumstances in this case simply do not rise to a level to warrant paying the applicant leave beyond 13.5 days.  In view of the above and in the absence of evidence he was denied rights to which entitled, we only recommend his records be corrected to the extent indicated below.	

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that;

a. He receive payment of 13.5 days of accrued leave.

b. He be paid for the last 2 years of his Aviation Continuation Pay Contract dating from 2009 to 2010, totaling $50,000.00.   

The following members of the Board considered AFBCMR Docket Number BC-2016-01386 in Executive Session on 26 Sep 17 under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01386 was considered:

	Exhibit A.  DD Form 149, dated 31 Mar 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2SSM, dated 19 Jul 16.
	Exhibit D.  Memorandum, ARPC/DPAA, dated 7 Nov 16.  
Exhibit E.  Letter, SAF/MRBR, dated 28 Jul 17.
	Exhibit F.  Letter, Applicant, dated 21 Aug 17, w/atch.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.