APPLICANT REQUESTS: In effect, correction of his military records by compensating him for 14 days leave that he lost at the end of Fiscal Year 1996.
EVIDENCE OF RECORD: The applicant's military records show:
A memorandum, dated 21 May 1996, indicates that the applicant, serving in pay grade E-7, was approved for retirement effective 1 December 1996, and that his appointment for final transition processing was set for 19 August 1996.
A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 26 July 1996, indicates that a flag was initiated effective 24 July 1996 on the applicant since he was pending an adverse action.
A General Counseling Form, dated 26 July 1996, indicates that the applicant was suspended from his First Sergeant duties pending an Army Regulation 15-6 investigation concerning accusations of sexual harassment. He was ordered not to sign out on leave until officially notified by his commander. The applicant acknowledged that he had been counseled; that he understood the reason for the counseling session; and that he concurred that the information accurately reflected the counseling session.
An undated DA Form 31 (Request for Authority for Leave), indicates that the applicant requested 76 days of transition leave from 16 September 1996 to 30 November 1996; that he had accrued leave of 56.5 days; that he was requesting advanced leave of 19.5 days; and that his request was approved.
His Defense Finance and Accounting Service Military Leave and Earnings Statement for the period ending 30 September 1996 indicates that he had a credit balance of 74 days leave; that he had 14 days leave to use/lose; and that he had not lost any leave days.
A staff member of the Board contacted the authorities at Fort Bragg, North Carolina, to obtain additional information regarding the flagging action. It was learned that the flagging action was removed effective 7 October 1996 since disciplinary action was taken. The applicant had received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 7 October 1996 for the following: he maltreated an enlisted woman, a person subject to his orders, on or about 23 February 1996 by trying to kiss her; he maltreated another enlisted woman, a person subject to his orders, on or about 1 March 1996 by grabbing her and trying to kiss her; and he maltreated another enlisted woman, a person subject to his orders, on or about 17 July 1996 by putting his hands on her buttocks and squeezing, by trying to kiss her by putting his tongue in her mouth, by placing his pelvis against her buttocks pulling her towards him and rubbing against her; and by trying to unbutton her pants. His imposed punishment was a forfeiture of $600 per month for 2 months. He did not appeal.
The U.S. Total Army Personnel Command (PERSCOM), in a comment (COPY ATTACHED) to the Board, advised that, by law, title 10, U.S. Code, section 701f, soldiers are authorized to carry forward up to 60 days of leave at the end of each fiscal year. Any accrued leave that exceeds 60 days at the end of the fiscal year is lost. The only exception to the law is when assigned to a hostile fire/imminent danger area or affiliated with a mobilization or contingency operation, then he or she may carry forward 90 days of leave at the end of the fiscal year. A review of the circumstances surrounding the applicants situation indicates the loss of 14 days of leave was due to no fault of the soldier. On 24 July 1996, he was flagged, pending an investigation, and was unable to take leave. He had requested transition leave from 16 September 1996 through 30 November 1996, which would have exhausted all leave in excess of 60 days at the end of the fiscal year. Approval of his request was recommended.
Army Regulation 600-8-2 prescribes the policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function. It provides, in pertinent part, that flags will be submitted when an unfavorable action or investigation (formal or informal) is started
against a soldier by military or civilian authorities. A flag prohibits certain personnel actions to include advanced or excess leave and retirement.
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. The applicant has failed to submit evidence that would satisfy this requirement.
2. The evidence of record indicates that the applicant was flagged on 24 July 1996 due to an adverse action, which was an Army Regulation 15-6 investigation concerning accusations of sexual harassment; that, on 26 July 1996, he was ordered not to sign out on leave until he was officially notified by his commander; that his request for leave included advanced leave; that he accepted NJP under Article 15, UCMJ, on 7 October 1996 for his maltreatment of enlisted women on six occasions; and that the flag was removed on 7 October 1996.
3. The Board notes the opinion furnished by the PERSCOM. However, the Board concludes that the loss of the 14 days leave at the end of Fiscal Year 1996 was due to the applicants actions, which resulted in a flag, an investigation, and disciplinary action.
4. 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
DENY APPLICATION
Karl F. Schneider
Acting Director
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