APPLICANT REQUESTS:  That he be reimbursed for 52 days of accrued leave that he lost at the time he was placed on the Temporary Disability Retired List (TDRL).  The applicant states that he lost 52 days of accrued leave when he was placed on the TDRL but was not aware of it until he was reviewing his personal records.  In support of his application he submits a copy of his final leave and earnings statement (LES).

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant, while serving in the pay grade of E-7 at Fort McClellan, Alabama, was placed on the TDRL on 26 February 1988.

The applicant’s records indicate that he had previously sold 60 days of accrued leave during previous enlistments. Therefore, he was not paid for his remaining 52 days of accrued leave.

The applicant was removed from the TDRL and placed on the Permanent Disability Retired List (PDRL) on 23 May 1989 in the pay grade of E-7 after serving over 16 years of total active service.

Army Regulation 630-5 serves as the authority for leaves and passes.  It states, in pertinent part, that soldiers may be granted leave in conjunction with transition, to include retirement, upon request, but it will not be granted when it interferes with timely processing or transition.  However, the established transition date as a result of physical disability may be extended for the purpose of allowing soldiers to use accrued leave as transition leave, provided they cannot sell the leave to the government.

That regulation also states that Congress has provided compensation (no more than 60 days in a military career) for soldiers who were not able to use their leave because military requirements prevented it.  Soldiers will not be required to use leave immediately prior to separation simply for the purpose of reducing leave balances.  On the other hand, use of the leave system as an extra money program defeats the intent of Congress to provide for health and welfare of soldiers.  It should not be used either as a method of compensation or as a career continuation incentive. It is specifically intended that large leave balances will not be accrued expressly for settlement upon release from active duty.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 23 May 1989, the date the applicant was placed on the PDRL.  The time for the applicant to file a request for correction of any error or injustice expired on 23 May 1991.

The application is dated 25 July 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director