RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 98-01962
INDEX CODE: 121.00
COUNSEL: None
HEARING DESIRED: Yes
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be paid for 60 days of forfeited leave [based on an upgraded
discharge in August 1981].
_________________________________________________________________
APPLICANT CONTENDS THAT:
The reasons applicant believes he has been the victim of an error
and/or an injustice are contained in his complete submission, which is
at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
A Board of Officers (BOO) convened for the second time on 6 February
1962. (The 12 December 1961 BOO proceedings, findings, and
recommendations are no longer in the record; however, legal review
found them insufficient based on the inaccurate, incomplete and
misleading advice of the legal advisor. Consequently the findings and
recommendations of the first BOO were set aside.) The findings and
recommendations of this BOO found that the applicant committed a
homosexual act with an airman, had homosexual tendencies, compromised
his ability to perform military service, and had no unusual
extenuating circumstances. The BOO recommended the applicant be
discharged with an undesirable discharge. The transcript and other
relevant documents are included with his military personnel records at
Exhibit B.
After a personal appearance, the applicant’s 1962 under-other-than-
honorable-conditions (UOTHC) discharge [Unfitness, Homosexual, Class
II-Board], was upgraded to general by the Air Force Discharge Review
Board (AFDRB) on 11 June 1981. A copy of the AFDRB brief is also at
Exhibit B.
The remaining relevant facts pertaining to this application, extracted
from the applicant's military records, are contained in the letter
prepared by the appropriate office of responsibility. Accordingly,
there is no need to recite these facts in this Record of Proceedings.
_________________________________________________________________
DFAS EVALUATION:
The Chief, Claims Branch, DFAS-DE/FYCC, reviewed the appeal and
advises that the applicant’s UOTHC discharge [Unfitness - Homosexual
Class II] was upgraded to general in June 1981. In a letter dated 13
August 1981, AFMPC/DOA1 advised the applicant of that fact and what he
should do about any monetary claims he might have. To date, DFAS has
no record to show he filed a claim until June 1998. According to the
Barring Act of 1 October 1940, he had six years from 13 August 1981 to
file a claim. Denial is recommended.
A copy of the complete evaluation, with attachment, is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF EVALUATION:
The applicant reviewed the advisory and contends his accusers
testified they wanted to get him “kicked out of the AF.” He wants the
Board to read the transcript of his [BOO proceedings].
Applicant’s complete rebuttal is at Exhibit E.
_________________________________________________________________
ADDITIONAL EVALUATION:
On 2 December 1998, the AFBCMR Staff asked DFAS-DE/FYCC to research
the available archives and advise if the Air Force Accounting and
Finance Center (AFAFC---since replaced by DFAS) ever made a
determination on the applicant’s potential monetary benefits. Due to
the Barring Act, the only means of affording relief in this case,
should the Board be inclined to recommend any, would be to extend the
applicant’s date of separation (DOS) until the 60 days leave would be
reimbursed through active duty pay. Therefore, DFAS was also asked to
compute how far the applicant’s DOS would have to be extended.
On 24 February 1999, the Chief, DFAS-DE/FYCC responded that it could
not be ascertained if the applicant was previously paid for 60 days of
accrued leave base pay. The burden of proof as to the existence and
nonpayment of a valid claim against the Federal Government is on the
person asserting such a claim. Ordinarily, proof of the validity of a
claim can be found in Government
records. However, in situations such as this, where records may prove
or disprove the validity of the claim have been destroyed, DFAS has no
alternative but to disallow the claim. The Chief advised that the
applicant separated from the Air Force on 16 March 1962. If the Board
should recommend relief, his DOS would have to be extended through 15
May 1962. He would then be placed on terminal leave status and
entitled to base pay, quarters, and rations. Denial is again
recommended.
A copy of the complete additional evaluation is at Exhibit F.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL EVALUATION:
A complete copy of the additional evaluation was forwarded to the
applicant on 15 March 1999 for review and comment within 30 days. As
of this date, no response has been received by this office.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was not timely filed; however, it is in the
interest of justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. After a thorough review
of the evidence of record and applicant’s submission, we are not
persuaded that relief is warranted. We note the applicant’s UOTHC
discharge was upgraded to a general discharge by the AFDRB in June
1981. In a letter dated 13 August 1981, AFMPC/DOA1 advised the
applicant of that fact and what he should do about any monetary claims
he might have. Apparently at this late date, DFAS’s archival research
could not ascertain if he was previously paid for the 60 days of leave
or whether he even filed a claim until June 1998. As the applicant has
provided insufficient evidence to support the validity of his claim
for payment for 60 days of leave, we agree with the recommendation of
the DFAS and adopt the rationale expressed as the basis for our
decision to recommend denial. We also note that, while the applicant
did not specifically request a different characterization of
discharge, he seems to take issue with it. We reviewed his military
records, to include the transcript of his 1962 discharge board and the
1981 decision of the AFDRB to upgrade his UOTHC discharge to general.
Based on the available evidence, we find no compelling basis upon
which to take any additional action in this regard.
4. The documentation provided with this case was sufficient to give
the Board a clear understanding of the issues involved and a personal
appearance, with or without legal counsel, would not have materially
added to that understanding. Therefore, the request for a hearing is
not favorably considered.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of probable 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 3 June 1999, under the provisions of AFI 36-2603:
Ms. Martha Maust, Panel Chair
Mr. Clarence D. Long III, Member
Ms. Barbara J. White-Olson, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 3 May 98, w/atch.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, DFAS-DE/FYCC, dated 21 Aug 98, w/atch.
Exhibit D. Letter, AFBCMR, dated 7 Sep 98.
Exhibit E. Letter, Applicant, dated 11 Sep 98.
Exhibit F. Letter, DFAS-DE/FYCC, dated 24 Feb 99.
Exhibit G. Letter, AFBCMR, dated 15 Mar 99.
MARTHA MAUST
Panel Chair
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