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AF | BCMR | CY2006 | BC-2004-02550
Original file (BC-2004-02550.doc) Auto-classification: Approved

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02550
            INDEX CODE: 121.03

            COUNSEL:  Manuel Fuentes

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

50 days of leave be restored to his leave account.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was forced to take leave because he was wrongfully  dismissed  from
duty. He filed a complaint with the Inspector General (IG) in Jackson,
MS. As a result of the IG’s findings, he was placed back on orders but
had already used his leave.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a member of the Mississippi Air National Guard (MSANG),
was serving as an instructor at  the  Regional  Counter-Drug  Training
Academy (RCDT) in the grade  of  technical  sergeant  (TSgt).   On  25
September  2003,  he  violated  RCTA  policy  regarding  staff/student
relationships.  Consequently, the Commandant of  the  training  center
issued him a Counseling Statement and a Letter or Reprimand to  remain
in his file for one year.  On 15 April 2004, the Commandant  initiated
a Notification of Intent to Release the applicant for  misconduct  and
violation of the  sexual  harassment  policy.   Applicant  was  to  be
separated from his tour with the RCDT effective  6  June  2004.   Soon
after, in response to his belief he was being punished again  for  the
same offense, he requested assistance from the Inspector General (IG).
 The IG recommended he be reinstated to the RCTG program and to resume
his duties.  Applicant resumed his duties on 14 June 2004.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  DPPI contends applicant was  notified  he
would be terminated from the Regional  Counter-Drug  Training  Academy
(RCTA) for violating rules  concerning  fraternization  with  students
attending the academy.  When he received the Notification of Intent to
Release from Counter-drug Orders for misconduct and violation  of  the
Sexual Harassment  policy,  he  made  application  for,  and  received
approval to use his remaining leave in terminal leave  status.   While
on terminal leave, he filed a complaint with the Mississippi  IG.  The
ensuing investigation led to his reinstatement to RCTA.

DPPI concedes while it is unlikely he would have taken 52  consecutive
days were his release from active duty not imminent, according to  AFI
36-3003, members separated for  cause  will  have  the  FSO  determine
payment for, use of, or forfeiture of accrued leave  at  the  time  of
separation.  Applicant applied for leave and it was granted.

DPPI’s complete evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 8
April 2005 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 timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice regarding the  restoration  of  50
days of leave to the applicant’s leave account.  We took notice of the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility and adopt its rationale as the  basis
for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  While it is  unlikely  he  would  have  taken  50
consecutive days of leave if not for the termination of his tour,  the
fact remains he applied for and  was  granted  the  leave  along  with
associated pay and allowances.  Therefore, in the absence of  evidence
to the contrary, we find no compelling basis to recommend granting the
relief sought in this application.

4.  Notwithstanding the above, we note the result of a thorough JFH-IG
inquiry resulted in  a  recommendation  to  reinstate  the  applicant.
Consequently  he  was  returned  to  duty  effective   14 June   2004.
Therefore, the Board recommends his records be corrected to the extent
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 on 7 June 2004, he was
not released from his position, but on that date he continued to serve
with the Regional Counterdrug Training Academy and the Mississippi Air
National Guard.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 7 July 2005, under the provisions of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Sue A. Lumpkins, Member
      Mr. James W. Russell, III, Member

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

    Exhibit A.  DD Form 149, dated 12 Aug 04.
    Exhibit B.  Letter, ANG/DPPI, dated 25 Mar 05, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 8 Apr 05.




                                   RICHARD A. PETERSON
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC



[pic]
Office Of The Assistant Secretary



AFBCMR BC-2004-02550




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 APPLICANT, be corrected to show that on 7 June 2004,
he was not released from his position, but on that date he continued
to serve with the Regional Counterdrug Training Academy and the
Mississippi Air National Guard.







     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency


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