RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03705 INDEX CODE: 121.00 XXXXXXXXXXXXXXXXXXXXXX COUNSEL: NO HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His 93 days of lost leave be restored. _________________________________________________________________ APPLICANT CONTENDS THAT: He was unable to take leave that accumulated from 1 April 2002 to 8 June 2005, which was the period of his reinstatement to active duty by the AFBCMR. In support of his appeal, the applicant provides a copy of an e- mail from the Defense Finance and Accounting Service (DFAS). The applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 6 April 2005, the AFBCMR approved the applicant’s request (AFBCMR Docket Number BC-2005-00770) for promotion to the grade of lieutenant colonel (Lt Col) effective and with a date of rank of 1 October 1998. He was also reinstated to active duty effective 1 April 2002 with a permanent change of station to his home of record or home of selection pending further orders. The applicant was separated from active duty effective 31 March 2007 and retired effective 1 April 2007 in the grade of Lt Col. Upon his separation, the applicant was paid for a total of 54 days of unused leave on 31 March 2007. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIMC recommends denial of the applicant’s request. DPSIMC states that Title 10, United States Code, Section 501, is the authority for payment of accrued leave upon reenlistment, retirement, separation under honorable conditions, or death. It limits the 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. If the Board were to approve the member’s request, by law, only six days could be paid to the applicant since he was paid for 54 days on 31 March 2007. It is DPSIMC’s opinion that there is no error or injustice by the Air Force causing the applicant to lose leave. The complete DPSIMC evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant claims that DFAS needs an additional ruling from the AFBCMR which would allow them to pay compensation for 93 days of leave he lost during his reconstructive service period from 1 April 2002 to 8 June 2005 when he returned to active duty. He believes it would be an injustice to not compensate him for the value of his lost leave because he never had the opportunity to take it due to his unique situation. Since Comptroller General B-152421, Military Personnel — Record Correction — Payment Basis — Interim Civilian Earnings, allows the issuance of regulations to require the deduction of interim civilian earnings from the payment of back pay and allowances to provide treatment of military and civilian personnel in making adjustments for loss of compensation arising out of an erroneous or illegal separation or suspension from service, then it would be only just to allow the value of lost leave to be used to reduce the burden of civilian offsets as well. He respectfully requests the Board’s favorable consideration. The applicant’s rebuttal is at Exhibit E. _________________________________________________________________ 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 an injustice. We note the applicant’s contentions that he is entitled to reimbursement for 93 days of unused leave for the period 1 April 2002 to 8 June 2005 subsequent to the Board’s correction of his military record reinstating him to active duty; however, we have confirmed (as indicated by the applicant) that DFAS is currently computing his pay entitlements, which will also address any portion of an unused leave balance. Therefore, we recommend denying the applicant appeal based on the fact his request is premature and that he has not exhausted all administrative channels at this time. Once the applicant receives a settlement from DFAS, if he still feels that he has been a victim of an error or injustice, he should file an appeal at that time. Accordingly, we find no compelling basis to recommend granting the relief sought in this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 25 February 2009, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered for AFBCMR Docket Number BC-2008-03705: Exhibit A. DD Form 149, dated 30 Sep 08, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIMC, dated 28 Oct 08. Exhibit D. Letter, SAF/MRBR, dated 31 Oct 08. Exhibit E. Applicant’s Rebuttal, dated 8 Nov 08. Panel Chair