MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 25 February 1998
DOCKET NUMBER: AC97-06468
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. The following members, a quorum, were present:
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
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: That he be paid for 14 days of leave erroneously taken from him while he was on active duty.
APPLICANT STATES: He states that he has gone through every available procedure to remedy the mistake, however the government still owes him for 14 days of leave. He further states that he was told by the Defense Finance and Accounting Service that he would only be given back 5.5 days of leave because he had already sold back 54.5 days and an individual could only sell back 60 days during a career.
EVIDENCE OF RECORD: The applicant's military records show:
On 19 June 1990, while serving as an Medium Helicopter Repairman in Panama, in the pay grade of E-5, the applicant submitted a request for 15 days of ordinary leave from 1 July through 15 July 1990. A review of the applicants records show that he only took leave from 12 July through 14 July 1990 and should have only been charged for 2 days of leave since 14 July 1990 was a non-duty day.
On 15 July 1994 the applicant was notified that he was being considered for punishment under Article 15 for an incident which occurred on 20 June 1994. He was charged with being disrespectful to his superior commissioned officer by saying to her that she would never make major if he had anything to do about it. He further stated that she was the reason soldiers in the company kill themselves (or words to that effect) and he refused to stop talking after being ordered to at ease. He was also being considered for punishment under Article 15 for intending to deceive his commander by making a false official statement. As a result of his actions, he was relieved from his duties. The applicant exercised his right to demand trial by court-martial.
On 26 July 1994 charges against the applicant were referred to a special court-martial empowered to adjudge a bad conduct discharge.
On 26 August 1994, after consulting with counsel, the applicant submitted a request to be discharged under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial.
The request for discharge was approved by the appropriate authority on 30 August 1994. Accordingly, he was discharged on 25 October 1994, under honorable conditions, under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court martial. He had completed 8 years and 9 days of total active service and he was issued an General Discharge Certificate.
Army Regulation 630-5 serves as the authority for leaves and passes. It states, in pertinent part, 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 of 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.
The Department of Defense (DOD) Military Pay and Allowances Entitlement Manual provides statutory provisions for entitlements, deductions, and collection, and establishes DOD policy on their pay and allowances of military personnel. It states, in pertinent part, that service members shall forfeit all accrued leave at the time of discharge if the basis for their separation is in lieu of trial by court-martial.
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. In as much as the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and in accordance with the DOD Military Pay and Allowances Entitlements Manual, he was not entitled to be paid for accrued leave.
2. Therefore, in the absence of evidence to the contrary, it is reasonable to presume that what the Army did in his case was in accordance with the applicable laws and regulations in effect at the time.
3. 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
JHL CMF KW DENY APPLICATION
Karl F. Schneider
Acting Director
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