APPLICANT REQUESTS:  That his records be corrected to reinstate 23 days of leave.

APPLICANT STATES:  That, at the end of the fiscal year he had 83 days of leave; he started terminal leave of 60 days on 1 October 1994 with the intent of cashing in the remaining 23 days; and, when he received his final pay, he found out that he could not carry more than 60 days into the new fiscal year.  He alleges an agreement with someone that he would take 60 days leave and sell the remaining days back.  He furnished copies of his DD Form 214; separation and retirement order; and, leave and earning statements (LES) for the period 1 September-31 October 1994.

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

On 19 January 1970, he was inducted into the Army of the United States and served honorably until his separation on 22 September 1971, a period of 1 year, 8 months and 4 days.

On 4 August 1976, he enlisted in the Regular Army and continued until his separation and retirement.  He was promoted to pay grade E-6, effective 3 July 1986.

The applicant’s LES for September 1994 indicates a leave balance of 83 days; 60 days to be carried forward; and,    23 days to use or be lost.

On 1 October 1994, the applicant started terminal leave of 60 days, having lost the 23 days effective that date.

On 30 November 1994, the applicant was honorably separated, in pay grade E-6, under AR 635-200, based on length of service for retirement.  His Report of Separation indicates that he had 20 years and 1 days of creditable service.

Title 10, United States Code, Section 701f, authorizes only 60 days of leave to be carried over into the new fiscal year, except that soldiers assigned to a hostile fire/imminent danger area or affiliated with a mobilization or contingency operation and prevented from using accrued leave may carry over up to 90 days leave.  That decision is further implemented by Department of Defense Directive 1327.5 and Army Regulation 600-8-10, Leaves and Passes.

On 2 May 1997, the Commander U.S. Total Army Personnel Command (PERSCOM) provided an advisory opinion which recommended denial of the applicant’s request.  This opinion was based on there being no provisions under statute of Army Regulation that allows a member to carry over more than     60 days of leave at the end of a fiscal year, unless affiliated with an operation shown above. 

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

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.

2.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

3.  The Board notes that the applicant was a noncommissioned officer with over 20 years of service who received an LES on a monthly basis which clearly indicated his leave status and the amount he would lose if not taken by the end of the fiscal year.

4.  The applicant alleges an agreement to take 60 days leave and sell back 23 days; however, he fails to provide evidence of that agreement.

5.  There is no error or injustice in the loss of the excess leave.

6.  In view of the foregoing, there is no basis on which to grant the applicant’s request.

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