MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 November 2002
         DOCKET NUMBER: AR2002075556

         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:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Hubert O. Fry		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 95.5 days of leave that he lost at the time of his release from active duty (REFRAD).

APPLICANT STATES: In effect, that he was unjustly denied the opportunity to take leave and as a result of not being able to take his leave, he was denied payment for it at the time of separation because he had already cashed in his maximum of 60 days. He also states that because of his job, he was denied leave and lost 25.5 days of leave in the previous fiscal year. He further states that the denial of his leave and the lack of leadership and concern for him and his family, has caused great hardship on him and his family. In support of his application he submits a copy of his report of separation (DD Form 214), a copy of his April 2002, Leave and Earnings Statement (LES), and a copy his separation orders.

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

The applicant initially served as a Regular Army Aviator from 13 May 1984 until he was honorably discharged in the rank of captain on 1 August 1993, under the provisions of Army Regulation 635-100, chapter 3 and the Fiscal Year 1993 Voluntary Incentive Program – Voluntary Separation Incentive (VSI). He had served 9 years, 2 months and 19 days of total active service and was paid for 60 days of accrued leave.

He accepted a United States Army Reserve (USAR) commission and again entered active duty on 20 March 1994 in the Active Guard/Reserve (AGR) Program. He was promoted to the rank of major on 12 May 1996.

The applicant was serving as a commander when an investigation was initiated on 17 April 2000, under the provisions of Army Regulation 15-6, to investigate allegations against the applicant. The investigating officer concluded his investigation on 19 June 2000 and found that the facts substantiated that the applicant had willfully disobeyed lawful orders of a superior commissioned officer, that he had displayed conduct unbecoming a commissioned officer and that his conduct brought discredit upon the Armed Forces. He recommended that the applicant be relieved of command, that disciplinary action be taken and that a criminal investigation be initiated by the appropriate agency.

Although not in the available records, it appears that the applicant was relieved of his command on 20 December 2000.

On 12 April 2001, nonjudicial punishment was imposed against the applicant by the commanding general for disobeying lawful orders from his battalion commander on nine occasions, for making false official statements, for wrongfully having sexual intercourse with a woman who was not his wife, and for wrongfully and dishonorably installing and operating vending machines in the work area. His punishment consisted of a forfeiture of pay (suspended for 6 months) and restriction. He did not appeal his punishment and the CG directed that the Record of Proceedings of NJP (DA Form 2627) be filed on the performance fiche of his Official Military Personnel File (OMPF).

The facts and circumstances surrounding events that led to his separation are not all present in the available records. However, the available evidence shows that his records were reviewed by a Department of the Army Active Duty Board (DAADB) to determine if he should be discharged for misconduct, moral and or professional dereliction. In the process of this review, the applicant submitted a memorandum to the DAADB in which he apologized for his grave mistakes in judgment and asserted that his entire record of service and accomplishments should be considered before a decision was made in his case.

The DAADB considered his case on 3 January 2002 and recommended that he be REFRAD with an honorable discharge and that he not be considered for elimination from the USAR. The recommendation was approved by the appropriate authority on 9 January 2002.

On 27 March 2002, the applicant was honorably REFRAD and was transferred to the USAR Control Group (Reinforcement). He had served 17 years, 5 months and 24 days of total active service. His DD Form 214 indicates that he did not receive any pay for accrued leave.

The April 2002 LES provided by the applicant shows that he had 73 days of leave at the time of his separation.

A review of the available records fails to show any indication that the applicant requested leave or that he was unjustly denied leave.

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 be paid for more than 60 days of unused leave during his career. The evidence of record shows that he had previously been paid for 60 days of accrued leave when he was discharged in 1993.

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 separation date.

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 attempted to take leave and his request was denied, he has provided no proof to support his contentions. Additionally, the Board notes that he was aware that he was being considered for separation by a DAADB well before he was actually separated and it is reasonable to believe that over the period of time that the process occurred, he could have taken his leave. The Board also finds that given the circumstances that evolved in his case, it was incumbent on the applicant to exercise responsibility in managing his leave as well as checking the regulatory requirements for disposing of his leave. The applicant has provided no evidence to show that the loss of his accrued leave was through no fault of his own.

5. The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record. 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 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.

8. 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:

___sac __ ___hof __ ___ra___ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075556
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/11/26
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.