MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2002070675

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Roger W. Able		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 he be paid for 24 days of accrued leave he lost at the time of retirement due to misinformation he received from local finance personnel.

APPLICANT STATES: In effect, that at the time of his retirement out-processing with the local finance office, he was given erroneous information concerning his accrued leave time that he had been prudently banking for transition. He was told that because he was retiring, he would not lose leave in excess of the 60-day maximum accrual when the fiscal year changed on 1 October 1998, but would be able to sell it back when he retired on 1 January 1999. However, when the fiscal year changed he lost all leave in excess of 60 days, leave that he could have programmed to use prior to losing it had he been properly informed. He goes on to state that the policy at the time was 30 days out-processing time combined with his 60 days of accrued leave, which is the way he programmed his transition. He planned to sell the remainder, which would have amounted to about $3,000 to $4,000 additional dollars to assist in his transition. When he discovered the error, finance officials endeavored to juggle the books by changing his transition time, but he still lost 24 days of leave. He goes on to state that he knew the rules regarding the fiscal year rule and never lost leave in his 20 years of service, but relied on the subject matter expert on this occasion to his detriment. He contends that the issue upset him so much that he did not attend his retirement ceremony and believes that he should be reimbursed for his loss. In support of his application he submits copies of his correspondence to his congressional representative, a copy of his retirement orders, an illegible copy of his report of separation, a copy of his leave form (DA Form 31), a copy of his leave and earnings statement (LES) dated August 1998, and a copy of his orders showing his assignment to the Army Reserve Personnel Command (ARPERSCOM) and attachment to Fort Lewis, Washington, for retirement purposes.

EVIDENCE OF RECORD: The applicant's military records were not available for review by the Board. However, the documents submitted by the applicant show:

He was a United States Army Reserve (USAR) lieutenant colonel serving on active duty in the Active Guard/Reserve Program at Fort Lewis, Washington, when orders were published attaching him to the transition point at Fort Lewis, effective 8 September 1998, for the purpose of separation processing.

He completed a DA Form 31 on 1 July 1998 (amended), requesting retirement leave for the period of 22 September to 18 November 1998. He indicated that he had 91.5 days of accrued leave as of 31 December 1998, that he desired to take 58 days of leave and that he desired to sell 33.5 days of accrued leave in conjunction with retirement.

His August 1998 LES shows that he had 81.5 days of accrued leave as of 31 August 1998.

On 22 December 1998, his orders were amended to show the period of his attachment at the Transition Point as 21 December through 31 December 1998. They were subsequently amended on 28 January 1999 to show the period of 27 November 1998 through 31 December 1998.

He was honorably released from active duty on 31 December 1998 and was placed on the Retired List, effective 1 January 1999.

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 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 leave as an extra money program defeats the intent of Congress to provide for the 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. Additionally, leave will not be granted that will interfere with timely processing or transition.

Department of Defense (DOD) Financial Management Regulation (Also known as the DOD Pay Manual) provides, in pertinent part, that beginning on 10 February 1976, a military member may not be paid for more than 60 days of accrued leave during a career. An exception to that provision was approved effective 2 August 1990, which allowed Reserve and Retired Component members who were called to active duty during the Persian Gulf Conflict to be paid for accrued leave over the 60-day limit.

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 applicant was not authorized to be paid for his accrued leave at the time of his separation because he was not authorized to accrue more than 60 days or carry over more than 60 days of accrued leave without prior authorization.

2. While it is unfortunate that the applicant may have lost some of his accrued leave at the time of his separation, he has failed to show through the evidence submitted with his application or the evidence of record that he was unjustly denied the opportunity to take ordinary or terminal leave at some time prior to his

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scheduled separation date, or that he attempted to change the date of his retirement in order to avoid the loss of his leave.

3. Although it is not the intent of the Government that soldiers lose their accrued leave, soldiers are routinely denied transition leave due to mission essential needs. There are no guarantees that transition leave will always be approved or that circumstances will change that prevent one from taking transition leave, which is an inherent risk in accumulating large sums of leave for such purposes.

4. While there are exceptions that allow individuals to accrue more than 60 days of leave and carry the balance over to the next fiscal year, there is no evidence to show that any of those exceptions applied to the applicant. While he contends that he relied on the information he received from finance personnel to plan his transition and to dispose of his leave, there has never been a provision that allows members to carry over leave from one fiscal year to the next, expressly for the purpose of selling it at retirement. Additionally, while the Board will concede that he may have been told he could carry his leave over or that he interpreted the information he was told as such, it was the applicant’s leave and it was his responsibility to manage his leave as well as checking the regulatory requirements for disposing of his leave. The applicant has provided no evidence to show that he was improperly counseled at the time or misled to believe that an entitlement existed that in fact did not exist and resulted in a loss, through no fault of the applicant, that could have been avoided.

5. The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application. He has failed to provide evidence to show how much leave he lost or the circumstances surrounding its loss. All of the evidence submitted is strictly based on his views and provides no corroboration by Army officials at Fort Lewis at the time to substantiate his claim. The Board is not an investigative agency and while it reviews many cases in which soldiers make claims of error or injustices, in no case does the Board approve such request without substantive evidence to support the issues presented.

6. Notwithstanding the foregoing conclusions, there are no provisions in the applicable laws and regulations that allow for payment to the applicant for leave lost.

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

___jhl___ ____tbr__ ___rwa__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070675
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/09
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 254	121.0200/LEAVE PAY
2.
3.
4.
5.
6.