MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        .

	BOARD DATE:             22 July 2003                  
	DOCKET NUMBER     AR2002083060

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Mr. Thomas D. Howard		Member	
	Mr. Thomas Lanyi		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his retirement date be changed from 
31 October 2002 to 22 December 2002.  

APPLICANT STATES:  In effect, that when he submitted his retirement packet in July 2002, he requested to cash in his unused accrued leave.  He states that it was not until four days prior to his retirement date that he discovered he had been given bad information at the time of his last reenlistment, and he could not cash in his leave.  He claims that he immediately contacted his personnel management officer (PMO) at the Full Time Support Management Directorate (FTSMD), Army Reserve Personnel Command (ARPERSCOM), in order to resolve the problem.  He states that the only way not to lose his accrued leave at that point was to have ARPERSCOM amend his retirement orders to change the effective date of his retirement to 22 December 2002.  

The applicant further states that because of problems with the unit e-mail server at his unit, he did not receive messages sent to him by his PMO until the suspense date to complete the action had already passed.  He claims that both he and the responsible members of his unit chain of command did everything possible to resolve this issue and forward the necessary documents to ARPERSCOM.  However, since the deadline was missed, through no fault of his own, ARPERSCOM was unable to amend the orders, and the result was he lost 
52.5 days of leave.  In support of his application, he provides e-mail messages between him, his unit, and ARPERSCOM officials.  

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

Orders Number C-09-291579, dated 12 September 2002, issued by ARPERSCOM, authorized the applicant’s release from active duty (REFRAD) on 31 October 2002, and his placement on the Retired List on the following day.  These orders show that the applicant held the rank of sergeant first class (SFC), and he had completed a total of 24 years and 20 days of active military service as of the date of his REFRAD.  

The applicant provides copies of e-mail messages from several individuals regarding the processing of his request for a change of retirement that began on 28 October 2002, with his message to his PMO informing him of the problem he encountered during retirement processing in regard to being paid his unused accrued leave.  He explained that he did not take transition leave because he could use the money more than the time off.  He now discovered that because 
he had already been paid for 60 days of leave during his career, he was not eligible to cash in any additional unused leave, and this would result in his losing 
52.5 days of accrued leave.  

In a 29 October 2002 e-mail, the applicant’s PMO advised him that a formal written request signed by him and his unit commander would be required to entertain a change to his retirement date.  The applicant was also informed that a copy of his e-mail message and his last leave and earnings statement (LES) substantiating his accrued leave would be required as supporting documentation. The PMO also advised the applicant that this leave problem was one of the reasons he advised him to take his ordinary leave from the unit prior to transition when he first began discussions on retirement.  

After several back and forth communications, the PMO notified the applicant, in a 31 October 2002, 4:05 PM e-mail, that the Deputy Director had disapproved the applicant’s request to change his retirement date.  The applicant was informed that he could still pursue relief through this Board subsequent to his discharge.    

In connection with the processing of this case, an advisory opinion was obtained from the Director, FTSMD, ARPERSCOM, who recommended that the applicant’s request for a change to his retirement date be denied.  She further indicated that entries on the ARPERSCOM Soldier Management System (SMS) confirm that as early as 15 July 2002, the applicant was afforded the opportunity to remain on active duty beyond his retirement control point, for the purpose of taking his leave.  The FTMSD Director recommends that the Board obtain an advisory opinion from the Defense Finance and Accounting Service (DFAS) to determine if an exception to policy concerning monetary payment to the applicant for his 52 days of accrued leave, given he had already cashed in the maximum 60 days, but does not recommend a change to the applicant’s retirement date.  

On 28 May 2003, the applicant was provided a copy of the ARPERSCOM advisory opinion in order to have the opportunity to reply to or rebut its contents.  To date, he has failed to respond.  

Army Regulation 600-8-10 prescribes the policies regarding leaves and passes.  Paragraph 2-4 contains guidance on the payment of accrued leave.  It states, in pertinent part, that by law, payment of accrued leave is limited to 60 days one time during a military career.  

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.  The Board notes the applicant’s contention that he lost 52.5 days of unused accrued leave through no fault of his own because he had received bad advice at the time of his last reenlistment.  However, the Board finds this factor provides an insufficient evidentiary basis to support granting the requested relief.  

2.  The evidence of record confirms that the applicant was REFRAD and placed on the Retired List in accordance with the applicable regulations.  Although, his request for an extension to his retirement date was entertained during his separation processing, it is clear this request was disapproved prior to his REFRAD.  The Board finds no error or injustice related to this denial.  

3.  By law the payment of accrued leave is limited to 60 days one time during a military career.  This requirement is well known and publicized throughout the Army.  In the opinion of the Board, as a senior noncommissioned officer with over 24 years of service, the applicant should have been aware of its existence well before his transition processing for retirement.  

4.  As indicated in the ARPERSCOM advisory opinion, the applicant was given the opportunity to extend his retirement date in order to use his accrued leave more than three months prior to his REFRAD.  Further, the e-mail traffic provided by the applicant also indicates that his PMO had advised him when he first contemplated retirement that he should use his unused accrued leave as ordinary leave prior to his transition processing in order to avoid losing the leave. Thus, the Board finds the applicant had ample opportunity to use his leave either as ordinary leave or transition leave prior to his separation.  

5.  The Board also considered the ARPERSCOM recommendation that an exception to policy in regard to the payment of accrued leave be considered.  However, given the payment of accrued leave is governed by law, the Board finds an exception to policy is not appropriate.  Further, any exception would not be fair to all those who have faced a similar circumstance and have lost unused accrued leave upon their retirement based upon the governing law.   

6.  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.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting 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

_TDH__  __JS__  __TL__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
      of Military Records

INDEX

CASE ID	AR2002083060	
SUFFIX		
RECON		
DATE BOARDED	2003/07/DD	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  283	128.0000	
2.		
3.		
4.		
5.		
6.