RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-00341

            INDEX CODE:      107.00
            COUNSEL:  NOT INDICATED

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect a balance of 43 days annual  leave
that was lost at the time of his separation from the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was miscounseled during his administrative  discharge  process  and
prior to his discharge from the Air Force, which caused him to lose 43
days of leave.

In support of the request, applicant submits DD Form 214,  Certificate
or Release of Discharge from Active Duty, and AF IMT 973, Request  and
Authorization for Change of Administrative Orders.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 15 Oct 97, for a period
of four years, and served as a Medical Services Craftsman.

He carried forward 62 days of leave at the beginning  of  Fiscal  Year
2007 (FY07).  He earned 24 days of leave during  FY07,  used  43  days
during FY07, and had a remaining leave balance of 43 days.

On 29 May 07, applicant’s commander preferred a  court-martial  charge
against him for willful dereliction of duty.  Specifically, for a one-
time, consensual encounter with a patient under his care.

He was advised of his rights in this matter and after consulting  with
counsel, on 7 Jun 07, submitted a request for  discharge  in  lieu  of
trial by court-martial.

His commander recommended he be separated with  an  under  other  than
honorable (UOTHC) discharge  characterization  without  probation  and
rehabilitation (P&R) and the group commander directed he be discharged
in lieu of trial by court-martial.

On 13 Jul 07, applicant was discharged in the grade of staff  sergeant
for  Triable  by  Court-Martial.   He  was  given  a  UOTHC  discharge
characterization, and an RE Code of 2B, “Separated with a  General  or
UOTHC Discharge”.  He served a total of nine  years,  and  six  months
active duty service.

His DD Form 214, Certificate of Release or Discharge from Active Duty,
issued upon his discharge reflects 43 days accrued leave paid.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIMC recommends  denial.   DPSIDR  states,  in  part,  that  in
accordance with AFI 36-3003, Military  Leave  Program,  the  applicant
must clearly establish that an error or injustice  by  the  Air  Force
caused the lost leave.  The Lackland AFB,  Military  Personnel  Flight
separations representative was contacted and indicated  the  applicant
was properly briefed on his entitlement to  leave.   Additionally  the
Lackland AFB finance office concurs that  the  applicant  was  briefed
properly, and received this information  when  the  discharge  process
first began.  Per DoD  Financial  Management  Regulation,  Volume  7A,
Chapter 35, a member who is  discharged  under  other  than  honorable
conditions forfeits all accrued leave to his or her credit at the time
of discharge.  There is no supporting  documentation  to  sustain  the
claim that he was miscounseled.  The leave lost was not  an  error  or
injustice caused by the Air Force.

The DPSIMC evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Although the advisory opinion states that he must clearly establish an
error or injustice by the Air Force, he submitted evidence that  shows
the center right side of AF IMT 973 contains the handwritten note, “43
days leave sell,” which is initialed.  The advisory opinion  does  not
address this fact at all because the document clearly  establishes  an
error by the Air Force during his separation briefing.

The advisory opinion completely glosses-over the fact that someone  in
the Lackland AFB, Finance office with  the  initials  M.L.S.  was  the
person who wrote on the AF IMT 973, that 43 days of leave were  to  be
sold.  He believes that any concurrence by the finance office is self-
serving.  No one wants to own  up  to  the  mistake  that  is  clearly
established on the AF Form 973, submitted with  his  application.   He
also questions the authority of the Personnel Center  to  conduct  its
own independent investigation into the facts by  interviewing  persons
without submitting sworn affidavits by these  persons.   Both  of  the
interviews done by the Personnel Center  are  extremely  weak  and  so
deficient that the AFBCMR should reject  any  recommendations  in  the
advisory opinion regarding his case.

After reading the DoD Financial Management Regulation, he agrees  that
the regulation prohibits persons in his situation from receiving leave
upon discharge.  However, the  Air  Force  is  charged  with  properly
briefing airmen on these regulations during the discharge process.  It
is clearly tardy for the Personnel Center to cite the  DoD  regulation
after his discharge  processing,  instead  of  during  his  separation
briefing.  Nowhere can the Personnel Center show where  they  informed
him during his discharge that this DoD regulation meant  he  forfeited
his leave.  It is a clear error by the Air  Force  and  it  caused  an
injustice to him  because  he  lost  the  opportunity  to  manage  his
discharge affairs in some other way.

The applicant’s complete response is at Exhibit E.

_________________________________________________________________

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.  After a thorough review  of  the
applicant’s submission and the available evidence of  record,  we  are
not persuaded that he should be awarded the requested relief.  We took
notice of the complete submission in judging the merits of  the  case;
however, we agree with the opinions and  recommendations  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 an injustice.  In the absence of  persuasive  evidence  to
the contrary, we find no compelling basis to  recommend  granting  the
relief sought in this application.

_________________________________________________________________

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-2008-
00341 in Executive Session on 21 May 08, under the provisions  of  AFI
36-2603:

                 Ms. B.J. White-Olson, Panel Chair
                 Mr. Elwood C. Lewis III, Member
                 Mr. James A. Wolffe, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 15 Jan 08, w/atchs.
      Exhibit B. Applicant's Available Master Personnel Records.
      Exhibit C. Letter, AFPC/DPSIMC, dated 4 Mar 08, w/atchs.
      Exhibit D. Letter, SAF/MRBR, dated 7 Mar 08.
      Exhibit E. Letter, Applicant, dated 26 Mar 08.




      B.J. WHITE-OLSON
      Panel Chair