RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-00965
            INDEX CODE:  121.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Twenty-five  (25)  days  of  leave  be  added  to  his  leave  account
commencing 1 October 1999.
_________________________________________________________________

APPLICANT CONTENDS THAT:

In July of 1996 he was placed on appellate leave  following  a  court-
martial conviction.  The case was overturned in March  1999.   He  was
brought back to duty in August 1999.  Because of  this  he  could  not
take the leave earned.

In support of the appeal, applicant submits a personal  statement  and
documentation relating to the matter.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 23 July 1975.

In July of 1996, he was placed on  appellate  leave  after  a  courts-
martial conviction.   On  16  November  1996,  applicant  applied  for
retirement in lieu of a bad conduct discharge, but  the  Secretary  of
the Air Force declined to accept the application.   A  General  Court-
Martial Order was issued and the sentence was approved except for  the
bad  conduct  discharge.   Applicant  was  placed  on  leave   pending
completion of the appellate review of  the  conviction.   On  9  March
1999, applicant’s conviction by General Court-Martial was  set  aside.
A rehearing was  found  to  be  impractical  and  the  charge(s)  were
dismissed.  The case was overturned in March 1999.  A decision was not
made to bring him back to duty until August 1999.  He was returned  to
active duty from appellate  review  leave.   On  30  August  1999,  he
applied for retirement to be effective 1 January 2000, which  was  his
high year of tenure (HYT) of 24 years of  active  service  for  master
sergeant.  His application for retirement  to  be  effective         1
January 2000 was approved on 3 September 1999.

The applicant departed on terminal leave on 26 September 1999  with  a
leave balance of 97 days.  He was brought back on active duty for  the
sole purpose of out processing for retirement.  He was unable to  take
his leave because he did not have sufficient time  to  use  the  leave
that was restored to his account before 1 October 2000.

The applicant had 85.0 days of leave at the end of Fiscal  Year  1999.
On 1 October 2000,  he  lost  25.0  days  because  Title  10  USC  701
prohibits members from carrying more than 60 days into the next fiscal
year.

Applicant retired from active duty on 31 December 1999.  He served  24
years 1 month and 21 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Field  Operations  Branch,   AFPC/DPSFM,   reviewed   the
application and states that the member  should  receive  relief.   The
retirement date should be adjusted to  accommodate  reimbursement  for
all pay and allowances.

A complete copy of the evaluation is attached at Exhibit C.

The Retirement Programs & Policy Section,  AFPC/DPPRRP,  reviewed  the
application and states that there  are  no  provisions  to  extend  an
approved retirement for the sole purpose to be paid for accrued  leave
or to take terminal leave.

Applicant retired on the maximum HYT date authorized for MSgts.  There
are no provisions of policy or regulation that  allow  an  involuntary
separation date to be extended due to  a  desire  for  terminal  leave
after the established  HYT  date.   Rather,  the  only  provisions  by
regulation that allow extensions to these involuntary separation dates
are for extreme hardship (not common to other  retiring  members  with
documented justification) or for  the  needs  of  the  Air  Force  (as
documented and justified  by  commanders).   Additionally,  there  are
provisions by regulation that allow extension of the maximum HYT  date
by placing member on medical  hold.   To  allow  an  extension  of  an
involuntary separation date (due to maximum HYT) for purposes of using
leave would be patently unfair to all the remaining  enlisted  members
retiring/separating on their HYT date who  do  not  have  this  option
available to them.  Therefore, they recommend  denial  of  applicant’s
request.

A complete copy of their evaluation, with attachments, is attached  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states that  there
seems to be some misconception on what  he  is  asking  for  from  the
Board.  He was not told about the lost days of leave  until  after  he
had taken them and received his pay and allowances.  When he  departed
on leave everything was correct and proper.  He’s not asking that  his
retirement date be changed or for any other finances be paid  to  him.
All he’s asking for is that the 25 days of leave be restored  so  that
he does not have to continue to repay the government for them.  He did
as he was told by the Air Force and now he’s having to struggle to pay
for this when it was out of his control.  He states, if there is a way
to restore the leave administratively and at no cost to the government
he would greatly appreciate it.

A copy of applicant’s response 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 probable error or  injustice.   After  reviewing  the
evidence of record, we believe that the applicant was  prevented  from
using his leave through no fault of his own.  In view of the fact that
his court-martial conviction was set aside, we believe  the  applicant
should have been provided  the  opportunity  to  use  his  leave.   In
addition, we believe that the applicant  should  have  been  counseled
concerning the amount of leave he had  to  use  when  he  departed  on
terminal leave in September 1999.  As the record now stands  applicant
has  been  charged  25  days  of  excess  leave,   which   under   the
circumstances of this case, is unjust.  Therefore,  we  recommend  his
records be corrected to the extend indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that twenty-five (25) days
of leave were added to his leave account commencing         1  October
1999 and he was in regular, rather than excess,  leave  status  during
the period 6 December 1999 through 31 December 1999.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 16 August 2001, under the provisions of  AFI  36-
2603:

                  Mr. Jackson A. Hauslein, Panel Chair
                  Mr. Roscoe Hinton, Jr., Member
                  Mr. Lawrence R. Leehy, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:


   Exhibit A.  DD Form 149, dated 24 Mar 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPSFM, dated 18 May 01.
   Exhibit D.  Letter, AFPC/DPPRRP, dated 21 Jun 01, w/atchs.
   Exhibit E.  Letter, AFBCMR, dated 29 Jun 01.
   Exhibit F.  Applicant’s Response, undated.




                                   JACKSON A. HAUSLEIN
                                   Panel Chair



AFBCMR 01-00965
INDEX CODE:  121.00



MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to , be corrected to show that twenty-five (25.0) days
of leave were added to his leave account commencing 1 October 1999 and
he was in regular, rather than excess, leave status during the period
6 December 1999 through 31 December 1999.







            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency