RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

 
IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03476
			COUNSEL:  NONE
   			HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be paid for 42 days of lost leave.  

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APPLICANT CONTENDS THAT:

On 1 Jul 1995, he retired and sold 60 days of accrued leave.

On 7 Jul 2009, he was recalled to active duty under the Rated 
Officer Recall to Active Duty Program.

On 1 Dec 2012, he retired again.  He took 30 days of terminal 
leave and planned on selling back 42 days of accrued leave.

He learned during final out-processing that he was ineligible to 
sell leave due to the 60 day limit that can be sold in a career.  

He was not aware of this rule and as a result lost his leave.  
This is pay that he earned by honorable service and he should be 
compensated.  If he had been aware of this rule, he would have 
complied by taking leave.

He voluntarily returned to help the Air Force and did so with 
the expectation that he would be treated fairly.  He requests a 
waiver to be paid for the lost leave.  Non-payment has caused a 
financial hardship on him and his family.

In support of his request, the applicant provides a personal 
statement, copies of his Leave and Earnings Statement (LES) and 
DD Forms 214, Certificate of Release or Discharge from Active 
Duty. 

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

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STATEMENT OF FACTS:

On 1 Jul 1995, the applicant was retired.  His DD Form 214 shows 
he was paid for 60 days of accrued leave.

On 7 Jul 2009, the applicant was recalled to active duty.  

On 1 Dec 2012, he was retired.

According to the Defense Finance Accounting Service (DFAS), he 
lost 40 days of leave at the time of his 1 Dec 2012 retirement.  

He served 3 years, 4 months and 25 days on active duty this 
period.  He served 21 years, 2 months and 10 days of prior 
active duty service. 

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AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial.  In Accordance With (IAW) AFI   
36-3003, Military Leave Program, paragraph 4.6, Title 37, United 
States Code (U.S.C.), Section 501, is the authority for payment 
of accrued leave upon reenlistment, retirement, separation under 
honorable conditions or death.  It limits payment of accrued 
leave to 60 days in a military career effective 10 Feb 1976.  A 
military career includes former service in an enlisted or 
officer status and cumulative payment for accrued leave cannot 
exceed 60 days.  Since the applicant sold the maximum 60 days of 
leave previously, he is ineligible to sell his 42 days of lost 
leave in conjunction with his 1 Dec 2012 retirement.  

The complete DPSIM evaluation is at Exhibit B.  

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

He was stationed at NAS Whiting Field, FL with virtually no Air 
Force support structure.  He had no knowledge that one could not 
sell more than 60 days of leave.  Because he previously retired, 
his squadron leadership determined it was unnecessary for him to 
attend the Transition Assistance Program (TAP).  He asked many 
who attended TAP if this issue was addressed and all said it was 
never addressed.  His job was to train pilots and not worry 
about the finer points of the leave issue.  Selling back excess 
leave during a second tour is unique for officers.  Rarely would 
an officer be in such a position.  He earned this leave through 
honorable service while helping the Air Force during a pilot 
shortage and it is unconscionable to him that he would not be 
compensated for his leave.  

The applicant’s complete response is at Exhibit D.  

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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 an error or injustice to warrant 
relief.  We note the Air Force Office of Primary Responsibility 
recommends denial because the law limits payment of accrued 
leave in a military career to 60 days.  Although he was paid for 
60 days of accrued leave in conjunction with his 1 Jul 
1995 retirement, the evidence reflects that he was recalled to 
active duty in Jul 2009 under the Rated Officer Recall Program 
and retired again on 1 Dec 2012.  In view of this, we do not 
find it reasonable that he would have knowingly elected not to 
pursue use of his leave had he been made aware that he was 
ineligible to sell additional leave.  While Title 37 limits 
payment of accrued leave to 60 days, it does allow for payment 
of leave accrual when the recall to active duty is in support of 
a contingency operation.  The evidence reflects that the 
applicant was recalled to active duty during a period that 
overlapped with Operation Iraqi Freedom (OIF) and Operation 
Enduring Freedom (OEF).  Therefore, in the interest of justice 
we recommend the applicant’s Extended Active Duty (EAD) orders 
be amended to reflect that he was recalled to active duty in 
support of OIF and OEF contingency operations which would allow 
him to be paid for his lost leave IAW Title 37 U.S.C 501, para 
B.5(c).  Although the applicant requests that he be paid for 
42 days of lost leave, according to DFAS records, he only lost 
40 days.   Accordingly, in the interest of justice, we recommend 
his records be corrected as indicated below.  

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records relating to APPLICANT, be 
corrected to show that his Extended Active Duty Order, Special 
Order Number AGA 059, dated 2 Jul 2009, and amended by AF IMT 
973, Request and Authorization for Change of Administrative 
Orders, Number AGA 078, dated 15 Mar 2012, be amended to reflect 
that he was recalled to active duty in support of Operation 
Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) and 
reimbursed for 40 days of lost leave in accordance with 
37 U.S.C. § 501(b)(5)(C) at the time of his 1 Dec 
2012 retirement.  

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All members voted to correct the records as recommended. Due to 
the unavailability of  ,   will sign as Acting Panel Chair.   
The following members of the Board considered Docket Number BC-
2013-03476 in Executive Session on 15 and 22 May 2014, under the 
provisions of AFI 36-2603:

 , Panel Chair
 , Member
 , Member

The following documentary evidence in was considered:

    Exhibit A.  DD Form 149, dated 9 Jul 2013, w/atchs.
    Exhibit B.  Letter, AFPC/DPSIM, dated 31 Mar 2014.
    Exhibit C.  Letter, SAF/MRBR, dated 13 Apr 2014.
    Exhibit D.  Letter, Applicant, dated 22 Apr 2014, w/atch.




 
				Acting Panel Chair