MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2001
         DOCKET NUMBER: AR2001056617

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman		Member
Mr. Richard T. Dunbar		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)

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APPLICANT REQUESTS: That his leave from 14 June to 23 July 1993 not be charged to him because he did not take it.

APPLICANT STATES: That he was charged for leave from 14 June to 23 July 1993 which he did not take while on active duty. In support of his application he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 9 April 1991 as a military policeman.

The applicant’s records contain a copy of a US Total Army Personnel Command (PERSCOM) Message, dated 20 May 1993, to the Commander of Fort Knox, Kentucky, subject: Curtailment and Reassignment of the applicant. The message stated that the applicant should be advised that his application for reassignment was reviewed by the DA Compassionate Review Board and was not favorably considered. The message also stated that the problems presented were certainly difficult and unfortunate. However, the applicant’s father had chronic medical problems, which were not resolvable during the period, for which curtailment and stabilization were authorized. The message further stated that the applicant could remain attached to Fort Knox until 14 June 1993, and that this attachment was permissive.

The applicant’s record contains a copy of a memorandum from Headquarters,
US Army Armor Center and Fort Knox, dated 3 June 1993, subject: Request
For Hardship Discharge, which was signed by the Adjutant General. The memorandum stated that the applicant’s request for separation by reason of hardship, submitted by the applicant, was approved under the provisions of
Army Regulation 635-200, chapter 6.

On 14 June 1993, the applicant requested excess leave pending administrative discharge proceedings. He also stated, in his request, that he understood that periods of excess leave were without pay and allowances, which included entitlement to physical disability retired pay should he become disabled while in an excess leave status, and that no leave accrues during periods of excess leave. The applicant’s request was approved on the same day. The approval memorandum also noted that all accrued leave would be used prior to the start of the excess leave status.

Accordingly, the applicant was discharged on 23 July 1993 under the provisions of Army Regulation 635-200, chapter 6-3b, for hardship. He had a total of
2 years, 3 months, and 15 days of creditable service.



Item 18 (Remarks) of his DD Form 214 shows the entry “”EXCESS LEAVE (CREDITABLE FOR ALL PURPOSES EXCEPT PAY AND ALLOWANCES):
40 DAYS, 930614 TO 930723.”

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 6 of that regulation provides, in pertinent part, for
the separation of personnel because of genuine dependency or hardship. An
application for such separation will be approved when a service member can substantiate that his/her situation or immediate family's situation has been aggravated to an excessive degree since enlistment, that the condition is not temporary, and that discharge will improve the situation.

Paragraph 6-3b, provides for the separation due to hardship. A hardship
exists when, in circumstances not involving death or disability of a member of the soldier’s (or spouse’s) immediate family, separation from the service will
materially affect the care or support of the family by alleviating undue and genuine hardship.

Army Regulation 630-5, in effect at that time, prescribed polices and procedures
governing leaves and passes. Paragraph 5-2 pertained to excess leave. It stated, in pertinent part, that excess leave may be granted in emergencies (chap 6) or unusual circumstances. The aggregate of all leave granted normally will not exceeded 60 days for any one period of absence. The aggregate of leave granted includes accrued plus advance (to include the unaccrued portion of advance leave previously granted) plus excess leave and that excess leave will be granted only upon request of the soldier. It also stated that the request must contain a statement which ensures soldiers are aware that periods of excess leave are without pay and allowances, that no leave accrues to soldiers during periods of excess leave, and that there is no entitlement to physical disability retired pay should the soldier incur a physical disability while in an excess leave status.

Paragraph 5-5 of the same regulation, provided for excess leave awaiting administrative discharge. It stated that the General Court-Martial authority, or his or her designee, may authorize soldiers awaiting completion of administrative discharge proceedings, an indefinite period of excess leave upon their request. This option may be used when excess leave would be in the best interest of the unit to which the soldier is attached. Leave granted must not interfere with timely processing or separation. Soldiers who have been granted leave while awaiting administrative discharge, will be charged with ordinary leave until accrued leave is exhausted.




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. The Board notes the applicant’s contention that he was charged for leave from 14 June to 23 July 1993 which he did not take while on active duty.
However, the evidence of record clearly shows that he voluntarily requested excess leave pending administrative discharge without pay and allowances in accordance with applicable regulations.

2. The Board also notes that the applicant stated in his request that he understood that periods of excess leave are without pay and allowances, which includes entitlement to physical disability retired pay should he become disabled while in an excess leave status, and that no leave accrues during periods of excess leave. The Board further notes that the applicant’s request for excess leave was approved and that he departed on excess leave on 14 June 1993
until 23 July 1993, the date of his discharge.

3. The evidence of record also shows that the applicant was administratively discharged on 23 July 1993, in accordance with Army Regulation 635-200, chapter 6, for hardship.

4. 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.

5. 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

__js___ ___dh___ ___rd_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001056617
SUFFIX
RECON
DATE BOARDED	20010828
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19930723
DISCHARGE AUTHORITY	AR 635-200, C 6
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 252
2.
3.
4.
5.
6.