RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03476 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He be paid for 42 days of lost leave. ________________________________________________________________ APPLICANT CONTENDS THAT: On 1 Jul 1995, he retired and sold 60 days of accrued leave. On 7 Jul 2009, he was recalled to active duty under the Rated Officer Recall to Active Duty Program. On 1 Dec 2012, he retired again. He took 30 days of terminal leave and planned on selling back 42 days of accrued leave. He learned during final out-processing that he was ineligible to sell leave due to the 60 day limit that can be sold in a career. He was not aware of this rule and as a result lost his leave. This is pay that he earned by honorable service and he should be compensated. If he had been aware of this rule, he would have complied by taking leave. He voluntarily returned to help the Air Force and did so with the expectation that he would be treated fairly. He requests a waiver to be paid for the lost leave. Non-payment has caused a financial hardship on him and his family. In support of his request, the applicant provides a personal statement, copies of his Leave and Earnings Statement (LES) and DD Forms 214, Certificate of Release or Discharge from Active Duty. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 1 Jul 1995, the applicant was retired. His DD Form 214 shows he was paid for 60 days of accrued leave. On 7 Jul 2009, the applicant was recalled to active duty. On 1 Dec 2012, he was retired. According to the Defense Finance Accounting Service (DFAS), he lost 40 days of leave at the time of his 1 Dec 2012 retirement. He served 3 years, 4 months and 25 days on active duty this period. He served 21 years, 2 months and 10 days of prior active duty service. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends denial. In Accordance With (IAW) AFI 36-3003, Military Leave Program, paragraph 4.6, Title 37, United States Code (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 effective 10 Feb 1976. A military career includes former service in an enlisted or officer status and cumulative payment for accrued leave cannot exceed 60 days. Since the applicant sold the maximum 60 days of leave previously, he is ineligible to sell his 42 days of lost leave in conjunction with his 1 Dec 2012 retirement. The complete DPSIM evaluation is at Exhibit B. ________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATION: He was stationed at NAS Whiting Field, FL with virtually no Air Force support structure. He had no knowledge that one could not sell more than 60 days of leave. Because he previously retired, his squadron leadership determined it was unnecessary for him to attend the Transition Assistance Program (TAP). He asked many who attended TAP if this issue was addressed and all said it was never addressed. His job was to train pilots and not worry about the finer points of the leave issue. Selling back excess leave during a second tour is unique for officers. Rarely would an officer be in such a position. He earned this leave through honorable service while helping the Air Force during a pilot shortage and it is unconscionable to him that he would not be compensated for his leave. The applicant’s complete response is at Exhibit D. ________________________________________________________________ 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 relief. We note the Air Force Office of Primary Responsibility recommends denial because the law limits payment of accrued leave in a military career to 60 days. Although he was paid for 60 days of accrued leave in conjunction with his 1 Jul 1995 retirement, the evidence reflects that he was recalled to active duty in Jul 2009 under the Rated Officer Recall Program and retired again on 1 Dec 2012. In view of this, we do not find it reasonable that he would have knowingly elected not to pursue use of his leave had he been made aware that he was ineligible to sell additional leave. While Title 37 limits payment of accrued leave to 60 days, it does allow for payment of leave accrual when the recall to active duty is in support of a contingency operation. The evidence reflects that the applicant was recalled to active duty during a period that overlapped with Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF). Therefore, in the interest of justice we recommend the applicant’s Extended Active Duty (EAD) orders be amended to reflect that he was recalled to active duty in support of OIF and OEF contingency operations which would allow him to be paid for his lost leave IAW Title 37 U.S.C 501, para B.5(c). Although the applicant requests that he be paid for 42 days of lost leave, according to DFAS records, he only lost 40 days. Accordingly, in the interest of justice, we recommend his records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records relating to APPLICANT, be corrected to show that his Extended Active Duty Order, Special Order Number AGA 059, dated 2 Jul 2009, and amended by AF IMT 973, Request and Authorization for Change of Administrative Orders, Number AGA 078, dated 15 Mar 2012, be amended to reflect that he was recalled to active duty in support of Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) and reimbursed for 40 days of lost leave in accordance with 37 U.S.C. § 501(b)(5)(C) at the time of his 1 Dec 2012 retirement. ________________________________________________________________ All members voted to correct the records as recommended. Due to the unavailability of XXXXXXXXXX, XXXXXXXXXX will sign as Acting Panel Chair. The following members of the Board considered Docket Number BC-2013-03476 in Executive Session on 15 and 22 May 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence in was considered: Exhibit A. DD Form 149, dated 9 Jul 2013, w/atchs. Exhibit B. Letter, AFPC/DPSIM, dated 31 Mar 2014. Exhibit C. Letter, SAF/MRBR, dated 13 Apr 2014. Exhibit D. Letter, Applicant, dated 22 Apr 2014, w/atch. 1 2