| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Ms. Jennifer L. Prater | Chairperson | |
| Mr. Melvin H. Meyer | Member | |
| Mr. James E. Anderholm | Member |
THE BOARD ADDITIONALLY FINDS:
11. In e-mails, dated 12 and 31 July 2002, DFAS officials informed the Board staff that they found no basis in law that would allow them to pay the applicant as authorized by the Board recommendation contained in its proceedings (AR2000048106), dated 15 March 2001.
12. After further review, the Board deems it appropriate to change its original recommendation to authorize the applicant’s reinstatement on active duty for
95 days and to provide the applicant all back pay and allowances due minus any offsets of retired pay.
THE BOARD ADDITIONALLY CONCLUDES:
6. At the time of the Board’s 15 March 2001 decision in this case, it was the intent of the Board to remedy the injustice served upon the applicant as a result of his loss of 94.5 days of earned accrued leave. This injustice was the result of the applicant being unable to use his accrued leave prior to his disability retirement due to his extended hospitalization and the paralysis of his lower extremities.
7. As was stated in the Board’s original conclusions, the applicable law and regulation only allowed for the payment of 60 days of accrued leave during a military career, and the applicant had previously been paid for 60 days of accrued leave earlier in his career. Therefore, the Board recommended that the applicant be paid for the 94.5 days of accrued leave that he had earned prior to his disability retirement as an exception to the existing law and regulation, in the interest of justice.
8. The Board believed at the time that it was acting within the legal authority it is granted under the provisions of Title 10 or the United States Code, section 1552, which authorizes the Board to provide relief not only in cases of errors in the military record, but also in cases of injustice. In the opinion of the Board, this case clearly met the injustice standard of the law which provided the legal authority necessary to provide the recommended relief.
9. However, notwithstanding the Board’s belief that it was acting within its legal authority in making the original recommendation in this case, it understands the DFAS objections. Further, the Board is not adverse to revising its recommendation to satisfy the DFAS objections as long as it ends in a fair and just result for the applicant.
10. In view of the additional factors in this case, the Board finds that it would be appropriate to reinstate the applicant on active duty and to show he remained in that status for 95 days beyond his current retirement date and by providing him all pay and allowances due as a result, minus any offsets of retired pay he earned for that period; and by adjusting his retirement pay to account for his additional active duty service and by providing him any back pay due as a result of this retired pay adjustment.
11. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.
THE BOARD RECOMMENDS:
That the recommendation of the Board appearing in the proceedings (AR2000048106), dated 15 March 2001, be replaced with the following recommendation: That all of the Department of the Army records related to this case be corrected by showing that the individual concerned remained on active duty for 95 days beyond his current retirement date and by providing him all pay and allowances due as a result, minus any offsets of retired pay he earned for that period; and by adjusting his retirement pay to account for his additional active duty service and providing him any back pay due as a result of this retired pay adjustment.
BOARD VOTE:
__JLP__ __MHM__ __JEA __ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
___Jennifer L. Prater___
CHAIRPERSON
| CASE ID | AR2002079603 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/10/08 |
| TYPE OF DISCHARGE | HD |
| DATE OF DISCHARGE | 1999/11/30 |
| DISCHARGE AUTHORITY | AR 635-40 |
| DISCHARGE REASON | Disability Retirement |
| BOARD DECISION | GRANT |
| REVIEW AUTHORITY | |
| ISSUES 1. 225 | 112.0300 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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