PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 November 2002
         DOCKET NUMBER: AR2001063676


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

Mr. Carl W. S. Chun		Director
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Sherri V. Ward		Member
Mr. Melvin H. Meyer		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requested reconsideration of his previous request wherein the Board granted relief to show that he was in a terminal (or transition) leave status during the period 22 November 1999 through 29 February 2000; he was retired on 1 March 2000. In effect, the applicant requested that his leave status during the cited period be returned to its original state.

3. The applicant states, in effect, that he was a Lieutenant Colonel serving on the Department of the Army (DA) staff in 1999 when he received a job offer from the Library of Congress (LOC) that required his immediate availability. Using a combination of ordinary leave, pass, permissive temporary duty (PTDY), and Federal and military training holidays, he left his Pentagon assignment on 19 November 1999 and went to work for the LOC on 22 November 1999. He did not actually retire from the Army until 1 March 2000. His superiors approved his leave status.

The applicant adds that, at some point during his employment, LOC officials were made aware that he had remained on active duty during the cited period. They informed him of the provisions of 5 U.S.C. §5534a requiring that a member of the uniformed services serving on active duty may only accept Federal government employment if in a terminal (transitional) leave status. He was advised that he would be separated from his position effective 29 September 2000 in accordance with pertinent LOC regulations unless he could show that he was in a terminal leave status.

The applicant states that, in order to comply with 5 U.S.C. §5534a and protect his job at the LOC, he applied to this Board on 26 September 2000 requesting that the cited period be considered terminal (transitional) leave. He adds that he knew that he would incur a debt, but was unaware that approval of his request would result in a $9,239.75 debt to the Defense Finance and Accounting Service (DFAS).

The applicant concludes by stating that the LOC did not reinstate him to his Federal job following the Board's action of 22 February 2001 to convert his absence from his military assignment to terminal leave. Additionally, the LOC kept his final pay and indicated its intent to recoup the salary that he was paid between 22 November 1999 and 29 September 2000 even though they benefited from his employment. He states that he cannot afford to repay both the LOC and DFAS and does not believe it fair for him to do so.

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4. In an undated letter to the Board, the applicant modified his request by acknowledging that his leave status was correct as changed by the Board on 22 February 2001 and asked that it not be changed. Instead, he requested that his debt to DFAS be waived. Following a telephone conversation with a staff member of the Board on 28 October 2002, the applicant asked that the Board disregard his modified request and simply rescind its previous action.
5. The applicant’s military records show that he graduated from the United States Military Academy and immediately entered on active duty. He rose to the rank of Lieutenant Colonel (LTC/O-5) and voluntarily retired with over 21 years of service for retirement purposes.

6. The applicant requested voluntary retirement on 15 September 1999 to be effective 29 February 2000. The request was approved and he was placed on the retired list on 1 March 2000.

7. The record shows that, between 22 November 1999 and 1 March 2000, the applicant, with the consent of his superiors, used a combination of authorized absence, leave, pass, and PTDY to cover his absence from his military duties. During this entire period, he worked full-time for the LOC.

8. On an unknown date, the LOC initiated an investigation into the applicant's military status during the period of his employment with that agency from 22 November 1999 through 1 March 2000. The LOC queried the Department of Defense Inspector General's Office (IG) who conducted an investigation into the issue of the type of leave the applicant took from 22 November 1999 to 1 March 2000. The IG determined that, while not all of the applicant's absences during the period were consistent with current Army policy, no intent to defraud the US Government was found and no action against the applicant was warranted.

9. On 26 September 2000, the applicant requested that this Board bring his leave status during the cited period in compliance with the provisions of 5 U.S.C §5534a. In considering this request, the Board reviewed the applicant's leave status and found that it was not in compliance with 5 U.S.C §5534a, nor was it in compliance with Army policy. In order to assist the applicant in his efforts to maintain his employment with the LOC, the Board, therefore, recommended, on 22 February 2001, that the entire period between 22 November 1999 and 29 February 2000 be designated as terminal or (transition) leave and that DFAS audit the applicant's pay account to determine if any pay adjustments were appropriate. This action brought the applicant's leave status in compliance with Army leave policy and the provisions of 5 U.S.C. §5534a, but at an acceptable monetary cost to the applicant given his continued employment with the LOC.

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10. The DFAS calculated that the applicant owed a debt of $9,239.75 based upon 37.5 days of accrued leave taken upon his retirement on 29 February 2000 and the need to place him on 9.5 days of excess leave (at a cost of $2,325.87) in order to cover the full period of transitional leave.

11. The LOC did not accept the Board's after-the-fact change of the applicant's leave status and terminated him from his civilian position with that agency. The LOC apparently withheld the applicant's final pay and threatened to recoup all of the salary paid to him.
12. Faced with an unintended financial hardship caused by his termination from his LOC position and the action taken by this Board on 22 February 2001, the applicant petitioned this Board to rescind its previous action.

CONCLUSIONS:

1. The Army approved the applicant's improper leave status, allowing him to begin working at the LOC on 22 November 1999 while remaining on active duty through 29 February 2000. Neither the applicant, nor the LOC initially knew of the provisions of 5 U.S.C. §5534a.

2. The Board's action of 22 February 2001 corrected the applicant's leave status, bringing it in compliance with both Army leave policy and Federal statutes. As a consequence of the Board's actions, DFAS recalculated the applicant's pay and determined that he owed a debt changing his leave status to transitional leave.

3. The Board took its initial action at the request of the applicant and in order to help him retain his civilian employment with the LOC; the incurring of a $9,239.75 debt was an unintended consequence of that action.

4. The LOC's refusal to recognize the Board's correction of the applicant's leave status resulted in the loss of his civilian position with that organization. The Board now finds that its previous action, though correct, has worked an injustice on the applicant by imposing a debt without benefit of protecting his employment.

5. In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1. That, in the interest of equity, all of the Department of the Army records related to this case be corrected by rescinding the Board's previous action of 22 February 2001 and restoring the leave status of the individual concerned to its previous state.

2. That any debt incurred by the individual concerned as a result of the Board's 22 February 2001 action be corrected and any moneys collected to satisfy such debt be refunded.

BOARD VOTE:

__jns___ __svw___ __mhm___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           John N. Slone
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001063676
SUFFIX
RECON
DATE BOARDED	20021119
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.