MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 October 2002
         DOCKET NUMBER: AR2002071871

         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:

Ms. Jennifer L. Prater		Chairperson
Mr. James E. Anderholm		Member
Mr. Melvin H. Meyer		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: In effect, cancellation of his debt to the Government that was incurred due to terminal leave.

APPLICANT STATES: That he received a letter from the Army on 22 June 1999, stating that he owes the Government for excess leave from 28 September to 29 December 1998. He signed out on terminal leave and had an expiration of term of service of (ETS) leave balance of 92.5 days. His unit informed him that as long as he signed out on leave before 1 October 1998, that he would not lose any leave over 60 days. He also states that he was unable to take leave because the mission was always first and that he has no plans to reimburse the Government because he was entitled to this leave. In support of his application, he submits copies of his: Defense Finance and Accounting Service (DFAS) account statement of debt; a computer generated DFAS-DE Form 0-642 (Statement of Military Leave Account); a computer generated DFAS-DE-Form
0-641 (Statement of Military Pay Account); June 1998 leave and earning statement (LES); separation orders; and a copy of letter from the Department
of the Treasury.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted on 29 August 1985, and continued to serve through a series of continuous reenlistments.

On 5 May 1998, the applicant submitted a request for terminal leave that was approved for 90 days from 3 September to 1 December 1998.

The applicant's June LES, prior to his departure on transition leave, shows that he had a balance of 77.5 days of accrued leave and a balance at his ETS of
92.2 days.

The applicant provided a copy of his Statement of Military Leave Account, dated 29 December 1998, which shows that he was charged 90 days of leave from
28 September to 29 December 1998. It also shows that he brought forward a total of 60 days of accrued leave prior to the fiscal year (FY) of 1999; earned 7.5 days from 1 October to 29 December 1998, for a total of 67.5 days, and had 24.5 days of excess leave collected.

The applicant provided a copy of his Statement of Military Pay Account, dated 29 December 1998, which shows that he was over paid in the amount of $1,330.13.

He was honorably discharged on 29 December 1998.



The applicant provided a copy of a DFAS account statement of debt, dated 22 June 1999, which shows that he had a current debt in the amount of $1,330.13. The reason for his debt was due to leave taken from 28 September to 29 December 1999, which left the applicant with an excess leave balance. He was not entitled to pay and allowances during periods of excess leave.

The applicant provided a copy of a letter from the Department of Treasury, dated 15 March 2002, which shows that the DFAS was listed as the Government agency collecting a debt that he owed in the amount of $1748.60, which was due on 15 March 2002.

Army Regulation 600-8-10 (Leave and Passes) covers leave and pass programs. It prescribes polices, operating tasks, and steps governing military personnel absences. Chapter 2 pertains to policy for leave. Paragraph 2-3 states, in pertinent part, that soldiers on active duty earn 30 days of leave a year with pay and allowances at the rate of 2 ½ days a month. Soldiers may accrue and carry forward up to 60 days leave at the end of each FY. Accrued leave that exceeds 60 days at the end of the FY is lost.

Paragraph 4-21, transition leave (formerly called terminal leave) is a chargeable leave granted together with transition from service, including retirement. Leave will not be granted if it exceeds that accrued or to be accrued between the date of approval and date of transition. It does not provide a soldier additional accrued leave. It only allows a soldier to use accrued leave in greater quantity at the time of transition from the Army than might otherwise be granted.
It also stated that soldiers could sell or cash in no more than 60 days of leave during their military career.

Paragraph 5-2 of the same regulation pertains to excess leave. It states, in pertinent part, that excess leave may be granted in emergencies 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 states that the request must contain a statement which ensures soldiers are aware that periods of excess leave are without pay and allowances, and that no leave accrues to soldiers during periods of excess leave.







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 applied for and received approval to take transition leave from 3 September to 1 December 1998, in conjunction with his separation.
However, prior to his departure, he had a total of 77.5 days of accrued leave and a balance of 92.2 days at his ETS, which was shown on his June 1998 LES.

2. The evidence of record shows that he was charged with 90 days of leave from 28 September to 29 December 1998. The evidence also shows that he brought forward a total of 60 days of accrued leave prior to the FY 1999, earned 7.5 days from 1 October to 29 December 1998, for a total of 67.5 days, and had 24.5 days of excess leave collected.

3. The applicant’s Statement of Military Pay Account clearly shows that he was overpaid in the amount of $1,330.13, which was due to excess leave.

4. The Board notes that in accordance with regulation, transition leave does not provide any additional accrued leave for a soldier. It simply authorizes a soldier to use already accrued leave and leave that may be accrued prior to transition from the Army. The Board also notes that excess leave may be granted in emergencies or unusual circumstances. The Board further notes that soldiers my accrue and carry forward up to 60 days of leave at the end of the FY and accrued leave that exceeds 60 days at the end of the FY is lost.

5. The applicant had accrued 67.5 days of leave at the date of his release from active duty and used 90 days of leave as stated on his Statement of Military Leave Account, and incurred a debt of 24.5 days of excess leave.

6. Based on the foregoing, the applicant has not convinced the Board that collection of his debt due to excess leave should otherwise not be collected.

7. The Board notes the applicant's contention that he was unable to take leave because the mission was always first; however, there is no evidence
in the available records, and the applicant has provided no evidence to show that he was denied leave due to mission requirements.

8. 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.



9. 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

__jp____ __ja____ __mm____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071871
SUFFIX
RECON
DATE BOARDED	20021008
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19981229
DISCHARGE AUTHORITY	AR 635-200, C 4
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 252
2.
3.
4.
5.
6.