Title: APPLICANT REQUESTS: Reconsideration of his previous request to correct his records to reflect disability retirement instead of retirement for length of service
Author: Newbutj

ABCMR Memorandum of                        AC93-07429A
Consideration (cont)

APPLICANT REQUESTS:  Reconsideration of his previous request to correct his records to reflect disability retirement instead of retirement for length of service.  He also requests that eight days not be charged as leave.

APPLICANT STATES:  In effect, that his retirement for length of service as a result of a Selective Early Retirement Board (SERB) should have been a disability retirement.  That the following days should not have been charged as leave since he used these days to prepare for an appeal to an informal and formal Physical Evaluation Board (PEB):  

	28, 29, 30 June.1991 and 1 July 1991
	1, 2, 3, 4 August 1991

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 29 March 1995 regarding the issue of disability retirement instead of length of service retirement.  (COPY ATTACHED).

The applicant submitted no new evidence to support his contentions that he should have been retired due to disability.

The applicant submits four letters as evidence that the days 28 June through 1 July 1991 and 1 through 4 August 1991 should not have been charged as leave.  Two of the letters submitted do not pertain to the leave issue; one is from Congressman James H. Quillen that tells the applicant to fill out a DD Form 149 and the other is from the Army Disability Rating Review Board (ADRRB) also suggesting that he fill out a DD Form 149.  

The other two letters are responses from the office at the Army Personnel Command which authors the leave and passes regulation for the Army.  In both letters the applicant was told that there is no requirement that duty time be used to prepare for an appeal to informal or formal PEB processing. There is no evidence that the applicant signed in off of leave on any of the days in question.

DISCUSSION:  Considering all the evidence, allegations,
and information presented by the applicant, together
with the evidence of record, applicable law and
regulations, it is concluded:

1.  The applicant’s request for reconsideration contained no new information relative to the disability retirement issue.

2.  The applicant did not submit nor is there any evidence or regulatory guidance that the applicant must use duty time to prepare an appeal, or submit statements on his behalf while processing through the disability system.  He chose to do so while on leave.  He could have signed in off leave had he chosen to do so.

3.  Considering the entirety of the case, the applicant chose to use his leave to prepare information needed for the ongoing disability processing when he could have signed back in off of leave.

4.  The overall merits of the case, including the latest
submissions and arguments are insufficient as a basis
for the Board to reverse its previous decision.

5.  In view of the foregoing, there is no basis for
granting the applicant's request for payment of eight days of leave he used while processing through the physical disability system.

DETERMINATION:  The applicant has failed to submit
sufficient relevant evidence to demonstrate the
existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION

						Karl F. Schneider
						Acting Director