RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 AUGUST 2004
      DOCKET NUMBER:  AR2003098756


      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. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Ms. Eloise Prendergast            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his “payroll records” be adjusted which
would, in effect, relieve him of his debt to the government based on his
excess leave and period of AWOL (absent without leave).

2.  The applicant states that he believes that the military payroll records
are wrong because if the military knew that he was AWOL he should not have
continued to receive pay.

3.  The applicant provides a copy of his separation document as well as a
document recounting how his mother attempted to keep various military
members aware of his medical situation and copies of documents confirming
medical treatment which prevented him from returning to basic training
following completion of the holiday leave period.  He also submits a copy
of his Department of Veterans Affairs rating decision.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant, a resident
of Thiensville, Wisconsin, enlisted in the United States Army Reserve, in
pay grade E-2, for a period of 6 years on 13 September 2000. At the time of
his enlistment, the applicant was 22 years old and had no prior military
service association.  He was ordered to initial active duty for training at
Fort Leonard Wood, Missouri, on 2 November 2000.  He was scheduled to
commence an 11 week basic training course on 13 November 2000 and a 7 week
AIT (Advanced Individual Training) course on 29 January 2001.

2.  According to a statement of the applicant’s military leave account; he
departed Fort Leonard Wood for 15 days of leave on 21 December 2000.  He
was scheduled to return from leave on 4 January 2001.

3.  A 9 January 2001 statement authored by a physician from the Mequon
Chiropractic Office in Mequon, Wisconsin, indicates that the applicant was
seen at the chiropractic office on 21 December 2000, his first day of
leave, with a complaint of left knee pain and mid-low back/chest pain.  The
physician indicated that both conditions occurred during incidents while
the applicant was undergoing basic training and that he referred the
applicant to an orthopedic surgeon for further evaluation.

4.  A document prepared by St. Mary’s Hospital indicates that the applicant
was seen in the emergency room of that hospital on 28 December 2000.  In a
statement authored by the applicant’s mother, she indicated that the
emergency room visit resulted when the applicant stood up and his knee
collapsed, causing severe pain.  A “worker’s compensation injury/illness
summary” statement, prepared by St. Mary’s Hospital indicated that the
applicant was “totally incapacitated and is unable to work until after
follow up” and that the applicant was “unable to report to duty until
orthopedic clearance is given.”

5.  According to documents provided by the applicant in support of his
request, he was apparently contacted by a member of his command on the
morning of
5 January 2001, the day after he was to return to Fort Leonard Wood to
continue with his basic training.  Following that phone call, the
applicant’s mother faxed a note to Fort Leonard Wood explaining the
applicant’s situation and that they had attempted to contact the unit
regarding the applicant’s situation.  Copies of
E-mails initiated by the applicant’s mother to the applicant’s commander on

8 January 2001 indicate she continued to try and relate the applicant’s
situation to his basic training unit.  Subsequent statements from the
applicant’s mother indicated that she did not receive any responses to her
inquiries.

6.  On 11 January 2001 the applicant was seen by an orthopedic surgeon and
scheduled for surgery on 15 January 2001.  This information was, according
to documents provided by the applicant, faxed to an individual at “Tri-Care
Medical.”

7.  A 16 January 2001 letter from the applicant’s commander to the
applicant’s mother informed her (the mother) that her son (the applicant)
had been AWOL since 5 January 2001 and urged her to have him “return
immediately to military control at the nearest military installation….”

8.  The applicant’s mother continued to fax information to a variety of
individuals, including the applicant’s congressional representative, and an
individual at a local Reserve unit regarding the applicant’s medical
situation.  On 25 January 2001 the applicant’s orthopedic physician wrote a
letter to “Department of the Army, Company D, 82d Chemical Brigade,” the
applicant’s basic training unit, and addressed the letter “To Whom It May
Concern.”  The letter outlined the applicant’s knee condition, his 15
January 2001 surgery, and that he anticipated in 6 to 8 weeks the applicant
would be able “to resume his boot camp activities.”

9.  The applicant returned to military control on 4 February 2001.  His
separation document and information from the Defense Finance and Accounting
Service (DFAS) indicate his last day of AWOL was 3 February.

10.  Although not included in documents available to the Board, or provided
by the applicant, he was apparently punished under Article 15 of the
Uniform Code of Military Justice (UCMJ).  That information is contained in
an October 2002 letter from the DFAS to the applicant’s congressional
representative.  That letter indicated that the applicant’s punishment
included reduction and forfeiture of pay and allowances.  However, a
computer generated pay statement from DFAS only confirms that the
applicant’s UCMJ action resulted in forfeiture of one month’s pay.

11.  On 6 March 2001 the applicant was discharged from active duty in pay
grade E-2.  His separation document, which he authenticated, indicates that
he was discharged for failing to meet procurement medical fitness
standards, and that he was AWOL between 5 January and 3 February 2001.  He
authenticated his separation document.

12.  The October 2002 letter from DFAS to the applicant’s congressional
representative indicated that as a result of the applicant’s AWOL period,
his 7 days of excess leave, and his forfeiture of pay from the UCMJ action,
resulted in a debt of $1531.86 to the government.  The pay statement from
DFAS indicates that the applicant continued to receive pay while in the
AWOL status and that because of his AWOL he did not accumulate any leave
days which would have reduced his excess leave balance.

13.  The statement of military leave account indicates that the applicant
was charged with 15 days of leave (21 December 2000 to 4 January 2001) and
that he accumulated only 8 days of leave between his entrance on active
duty on
2 November 2000 and his discharge on 6 March 2001.  Had he not been AWOL he
would have accumulated a total of 10.5 but would still have been short 4.5
days of leave at the time of his separation.

14.  In September 2001 the Department of Veterans Affairs granted the
applicant a 10 percent disability rating for his left knee condition.  The
rating decision noted that the applicant’s military entrance physical
examination showed no complaints of or diagnosis related to a left knee
condition.  It did state, however, that the Entrance Physical Standards
Board (EPSBD) Proceedings dated 13 February 2001 showed that the veteran
injured his knee while he was at home on “Exodus” and underwent left
meniscectomy on 15 January 2001.  The rating decision stated that attempts
to locate the applicant’s original service medical records were not
successful but that his claim file showed that the applicant reported
hurting his knee when he fell on it during training and a drill sergeant
“took the liberty” of straightening the applicant’s knee.

15.  Training and Doctrine Command (TRADOC) Regulation 600-16 establishes
the procedures for “EXODUS-The Christmas-New Year Holiday Period for
Personnel in Training.”  It states that Army Regulation 600-8-10 (Leave and
Passes) establishes the Christmas-New Year holiday period, EXODUS, from
20 December to 2 January (14 days).  Commanders may extend leave through
7 January for soldiers that observe Three Kings Day (6 January).  EXODUS
allows personnel in training to take leave with family during the Christmas-
New Year holiday period.  Commanders will generally allow soldiers to take
leave during this period.  Training and processing are normally suspended
during EXODUS.

16.  Army Regulation 635-10 (Absence Without Leave, Desertion, and
Administration of Personnel Involved in Civilian Court Proceedings) states
that a Soldier’s absence may be classified as unauthorized or authorized
and that classification is dependent on various factors, including “age,
military experience, and general intelligence of the Soldier” and the
“number and type of contact the Soldier had with the military while
absent.”  It notes that an absence classified as authorized or reclassified
as unavoidable is considered duty time even if the individual was absent
from Army control.

17.  Army Regulation 600-8-10 (Leave and Passes) states that “sick-in-
quarters” will be used if a Soldier is likely to be returned to duty within
72 hours.  It also states that Soldiers on leave who become sick-in-
quarters will not be charged leave for that period.  It states that excess
leave is a nonchargeable absence granted for emergencies or unusual
circumstances, but that it is also without pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant’s available file is devoid of information and
arguments from the perspective of the applicant’s chain of command, the
evidence available to the Board does confirm that the applicant sought
medical treatment for a knee condition on the very same day his leave from
basic training commenced.  It also confirms that he sought treatment again
on 28 December 2001 at which time medical officials noted that he was
“totally incapacitated” and “unable to work until after follow-up” and that
he ultimately underwent surgery for the knee condition.  While the
circumstances surrounding the injury and the date of the occurrence are not
known, the fact remains that the applicant did have a medical condition
which medical officials felt warranted attention.

2.  The fact that the applicant was punished under Article 15 of the
Uniform Code of Military Justice, may have been an indication that members
of his chain of command felt that the applicant, rather than his mother,
should have been the one contacting his basic training unit, as soon as his
medical condition became an issue.  The fact remains that the evidence
clearly indicates that the applicant’s mother was attempting to communicate
the applicant’s medical situation to military officials.  The applicant’s
mother’s communication with a variety of military officials may have
complicated the situation, but the evidence does support a conclusion that
she was, in her mind at least, attempting to keep military officials
informed about her son’s medical situation.

3.  In spite of the fact that the applicant may not have been more
responsible for communicating with his unit, the evidence does confirm that
he had a legitimate medical condition which prevented his return to basic
training following completion of his holiday leave period.  As such, in the
interest of justice and equity it would be appropriate to void the
applicant’s period of AWOL as well as the UCMJ action resulting from the
AWOL period.

4.  If the AWOL period and UCMJ actions are voided, the applicant would
then not be indebted to the government for wages received during the
period, nor would he have forfeited any pay.  He would still, however, not
accumulated sufficient leave to cover the 15 day leave he took during the
holiday period and would still have been indebted to the government for 4.5
days of leave at the time of his separation.

5.  The applicant received the statement regarding his inability to return
to basic training on 28 December 2000.  It could be concluded that he
entered a “sick-in-quarters” status on that date or shortly thereafter.  In
the interest of justice and equity, in view of the fact that his separation
was an involuntary action based on a pre-existing medical condition, it
would be appropriate to grant the applicant 5 days of “sick-in-quarters”
between 31 December 2000 and 4 January 2001, as an exception to usual
policy that it is intended for Soldiers expected to return to duty within
72 hours, and the applicant’s entire debt to the government would now be
erroneous.

BOARD VOTE:

___SP __  ___RO __  ___EP___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected:

      a.  by granting him 5 days of “sick-in-quarters” between 31 December
2000 and 4 January 2001, inclusive;


      b.  by excusing his period of AWOL between 5 January 2001 and
2 February 2001;


      c.  by voiding any UCMJ action resulting from his AWOL period; and


      d.  as a result of the preceding corrections, removing his now
erroneous debt to the government.




            _____Shirley Powell_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003098756                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040817                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |123.00                                  |
|2.                      |126.00                                  |
|3.                      |128.00                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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