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AF | BCMR | CY2003 | BC-2003-02424
Original file (BC-2003-02424.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02424
            INDEX NUMBER:  121.00
      XXXXXXXXXXXXXX   COUNSEL:  Gary Myers

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be credited with 95.5 days of  accrued  leave  and  that  they  be
allowed to be used as terminal leave or  to  sell  back  to  the  Air
Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a two-page brief of counsel, applicant states that he was  granted
relief in AFBCMR case 00-1736  to  include  a  six-year  constructive
reenlistment as of 26 Nov 97.  On 2 Mar 02, he was ordered to  active
duty.  When he asked to have leave credited  for  the  years  he  was
improperly separated from the  Air  Force,  he  was  advised  by  the
Defense Finance and Accounting Service (DFAS) that  they  could  only
credit him with 60 days of leave.

He was prevented from earning and using the requested  95.5  days  of
leave due to his improper  separation  from  service.   Although  his
records were corrected to show that he was on active duty during  the
period of Apr 97 through Jun 02, he was in fact  not.   When  he  was
reinstated in the Air Force by the  AFBCMR,  he  was  given  all  the
rights and privileges appertaining to any active service during  this
period.

In support of his case, the applicant provides a data  sheet  showing
the total amount of leave he would have accrued on continuous  active
duty.

The applicant’s complete submission, with attachments, is at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

On 14 Mar 01, the AFBCMR considered  a  case  on  the  applicant  and
granted relief that included the applicant’s reinstatement to  active
duty as of 10 Apr 97 (Exhibit B).  The applicant reported  to  active
duty on 14 Jun 02.  He has received one Enlisted  Performance  Report
with an overall rating of “5” since returning to active duty.

_________________________________________________________________
AIR FORCE EVALUATION:

DFAS-POCC/DE recommends denial of the applicant’s request.  They have
computed that the applicant actually lost 99 days of leave  vice  the
95.5 he has requested.  However,  10  U.S.C.  701(b)  states  that  a
member may not accumulate more than 60  days  of  leave.   Any  leave
accrued in excess of 60 days is  immediately  lost  and  may  not  be
credited in the next fiscal year.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant’s
counsel on 5 Sep 03 for review and comment within 30 days.  To  date,
a reply has not been received.

_________________________________________________________________

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 error or  injustice.   While  unfortunate  that  the
applicant technically lost 99 days of leave, we  believe  the  relief
provided  by  the  Board,  to  include  six  years  of   constructive
enlistment, provided appropriate and fitting relief  to  him.   While
every effort is made to make an applicant whole when it is determined
that he has been the  victim  of  an  error  or  injustice,  in  this
instance, we are precluded by statute from  crediting  the  applicant
with the additional 99 days of leave.   Additionally,  we  note  that
leave is primarily intended for a respite from the rigors of military
duty.  Although  the  applicant’s  records  have  been  corrected  to
indicate that he served during the period from 11 Apr 97  to  31  Jul
02, he in fact did not physically do so.  Therefore, in  the  absence
of evidence to the contrary, we find no compelling basis to recommend
granting the relief sought in 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   issues   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 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 Docket Number  BC-2003-
02424 in Executive Session on 8 October 2003, under the provisions of
AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Martha Maust, Member
      Mr. Michael V. Barbino, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Jul 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, DFAS-POCC/DE, dated 26 Aug 03.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Sep 03.




                                   THOMAS S. MARKIEWICZ
                                   Chair

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