RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03263 (Case 3)
            INDEX CODE:  128.10

            COUNSEL:  DAVID E. WHEELER

            HEARING DESIRED:  YES



_________________________________________________________________

APPLICANT REQUESTS THAT:

His back pay and allowances in the amount of $9,326.65 be restored.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The United States Air Force Court of Military  Review  set  aside  his
court-martial conviction and dismissed the charge  and  specifications
on 11 Jun 92.  Therefore, the Defense Finance and  Accounting  Service
(DFAS) erred when they offset his gross back pay he earned in civilian
employment while on appellate (excess leave) from 14 May 91 to  9  Aug
92.

Restoring the $9,326.65 serves the interest of justice, as it  is  the
only reasonable manner whereby he can be  restored  to  the  financial
position he was in before the court-martial.  Equity demands that  the
doctrine of waiver apply.

In support of his request, counsel submits a  Brief,  with  additional
documents associated with the issues cited in his contentions.   These
documents are appended at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular  Air  Force
on  8 Jun 88.  He has been progressively  promoted  to  the  grade  of
staff sergeant (E-5), with an effective date and date of rank of 1 Nov
96.

In 1994, applicant applied to the Air Force Board  for  Correction  of
Military Records (AFBCMR) to have his grade changed from senior airman
(E-4) to staff sergeant (E-5); or, that his High Year of Tenure  (HYT)
date of Jun 98 be extended.  His application was partially  granted  -
the Board approved the HYT extension.

The relevant facts pertaining to this application are contained in the
letter prepared by the Staff Judge Advocate, HQ AFPC/JA  (Exhibit  E).
Accordingly, there is no need to recite these facts in this Record  of
Proceedings.
_________________________________________________________________

AIR FORCE EVALUATION:

The  Claims  Branch,  DFAS-DE/FYCC,  recommended  the  application  be
denied.  DFAS indicated that the DoD Financial  Management  Regulation
(DODFMR), paragraph 030107, B, 1, requires that the  amount  of  gross
pay and allowances accrued be reduced by  civilian  earnings  (Exhibit
C).

Pursuant to the Board’s  request,  the  following  legal  opinion  was
provided.

The Staff Judge Advocate, HQ AFPC/JA, stated that while the  applicant
was serving in the grade of airman first class, he was court-martialed
at Eglin AFB, FL, on 8 Jan 91.  On 11 Jun 92, the Air Force  Court  of
Military Review (AFCMR) overturned his conviction for larceny, finding
that the conduct alleged and proven did not meet the elements  of  the
offense of larceny.  The punishment, which included reduction in grade
and a bad  conduct  discharge,  was  removed  and  the  applicant  was
reinstated in  grade  with  back  pay  and  allowances.   Pursuant  to
appropriate Department of Defense  (DoD)  regulations  and  Title  10,
United States Code, Section 707 (Payment upon disapproval  of  certain
court-martial sentences for excess leave required to be  taken),  DFAS
calculated applicant’s back pay.   The  DFAS  calculation  included  a
reduction or offset in applicant’s gross pay of $9,326.65 based on his
civilian earnings while on excess or appellate leave.  The offset  was
required by 10 U.S.C., Section 707(b)(2).

JA  stated  that  there  is  no  statutory  provision  for  waiver  or
modification of 10 U.S.C., Section 707(b)(2).

JA indicated that in the past, when the Air Force  has  taken  similar
offsets of back pay, both the Board and the Federal court system  have
supported the offset as a matter of policy.  Here, however, the offset
was not taken as a matter of policy, it was taken as a matter of  law.
It is JA’s opinion that the Board has sweeping  authority  to  correct
errors by granting waivers to policy; however, the Board is  bound  by
statute - even if the Board were  inclined  to  override  its  earlier
decisions and judicial precedence  in  this  area  and  find  that  an
injustice existed in the offset.  Because the applicant is  requesting
the Board to waive a statutory provision, he is requesting relief that
the Board is not empowered to grant.  The AFBCMR  does  not  have  the
authority to forgive debts owed to the United States.

A complete copy of this evaluation is appended at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force  evaluations  were  forwarded  to  applicant’s
counsel on 18 Jan 99 and 17 May 99 for review  and  response.   As  of
this date, no response has been received by this office (Exhibit E).
_________________________________________________________________

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.  We took notice  of  the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinions and recommendation of  the  Office
of the Staff Judge Advocate and adopt their rationale as the basis for
our conclusion that the applicant has not been the victim of an  error
or injustice.  Therefore, absent sufficient evidence to the  contrary,
we find no basis upon which to favorably consider this application.

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  issue(s)   involved.
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 13 July 1999, under the  provisions  of  AFI  36-
2603:

                  Ms. Cathlynn Sparks, Panel Chair
                  Mr. George Franklin, Member
                  Dr. Gerald B. Kauvar , Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Aug 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, DFAS-DE/FYCC, dated 29 Dec 98.
   Exhibit D.  Letter, HQ AFPC/JA, dated 27 Apr 99.
   Exhibit E.  Letters, SAF/MIBR, dated 18 Jan 99 and 17 May 99.




                                   CATHLYNN SPARKS
                                   Panel Chair