RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060008724 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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, in effect, correction of the ending date of his emergency leave and payment of pay and allowances for the period he was carried in an excess leave status.

2.  The applicant states, in effect, that while assigned to 119th Field Artillery Battalion and serving in Iraq, he returned to the United States in a Rest and Recreation (R&R) leave status.  During his R&R leave status, he encountered family problems and requested a 15-day leave extension from his unit.  The applicant also states, in effect, throughout this period he was in daily contact with the unit's administrative support staff, first sergeant, and company commander via telephone and electronic mail (email) concerning his situation and status.  He further states, in effect, he was advised to stay at home and try to resolve his family problem, but to report daily via telephone or in person at the unit's armory in Lansing, Michigan.  The applicant states his request for compassionate reassignment to his home station was denied and he was subsequently ordered to report back to his unit in Iraq or to request, in writing, a hardship discharge.  The applicant states that he submitted his request for hardship discharge and continued to report to unit personnel, as instructed, until his request for hardship discharge was approved.  He was then ordered to report to Fort Dix, New Jersey for out-processing on 22 August 2005.  He adds that when he was processed for discharge, his records were posted to show that he had been in an excess leave status for 49 days.  The applicant concludes by stating that, he exhausted his leave and should not be charged for leave after 12 July 2005 because he continued to report to his chain of command and the unit's administrative support staff, as ordered, and if he had been ordered or instructed to report to the unit's armory during this period he would have done so; however, this was not the case.  He states that he was incorrectly placed in an excess leave status and, as a result, denied pay and allowances during this period.

3.  The applicant provides a self-authored statement, dated 12 June 2006;
DA Form 31 (Request and Authority for Leave), dated 10 June 2005; Separation Leave Records: [Applicant's Social Security Number], Request for Payment of Accrued Leave, dated 24 August 2005; Headquarters, 18th Military Police Brigade (Iraq), memorandum, dated 8 August 2005, subject:  Letter of Release; Headquarters, 306th Military Police Battalion, Baghdad Correction Facility (Iraq), memorandum, dated 29 July 2005, subject:  Request for Release from Theater under AR 635-200, Chapter 6; Headquarters, 306th Military Police Battalion (I/R), Baghdad Correctional Facility (Iraq), memorandum, dated 28 July 2005, subject: Request for Hardship Chapter Six Discharge; Headquarters, 1st Battalion,
119th Field Artillery, Lansing, Michigan, memorandum, dated 28 July 2005, subject: Request for Hardship Chapter Six Discharge with enclosures; and email message strings, dating from 15 June 2005 through 16 August 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on
27 August 2005, the date of his discharge.  The application submitted in this case is dated 12 June 2006.

2.  The applicant's military service records show that he enlisted in the Army National Guard (ARNG) on 14 October 1985.  Upon completion of basic combat training and advanced individual training he was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  The applicant attained the rank of specialist/pay grade E-4, received training in MOS 71L (Administrative Specialist) and MOS 75B (Personnel Administration Specialist), and was reclassified into MOS 75B.  On 2 January 1992, the applicant was honorably discharged after completing 6 years, 2 months, and 19 days service and transferred to the
U.S. Army (USAR) Control Group.

3.  The applicant's military records show that he enlisted and reentered the ARNG on 17 September 1997, in the rank of sergeant/pay grade E-5.  He was assigned to Headquarters and Headquarters Battery, 1st Battalion, 119th Field Artillery, Lansing, Michigan, in MOS 13F (Fire Support Noncommissioned Officer).  On 29 September 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom.

4.  The applicant' military service records contain a copy of Headquarters, U.S. Army Fort Dix, Fort Dix, New Jersey, Orders 236-0013, dated 24 August 2005, that show he was reassigned to the U.S. Army Transition Activity, Fort Dix, New Jersey for transition processing.  This document shows, in pertinent part, that the applicant was to report on 24 August 2005 for discharge on 27 August 2005.

5.  The applicant' military service records contain a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 27 August 2005.  This document shows that the applicant was ordered to active duty on 29 September 2004 and that he served in Iraq in support of Operation Iraqi Freedom from 17 December 2004 to 12 June 2005.  This document also shows that the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 6-3b (Hardship) on 27 August 2005 after completing 10 months and 29 days of net active service during this period.

6.  In support of his application, the applicant provides the following documents.

     a.  A copy of a DA Form 31, dated 10 June 2005, that shows, in pertinent part, he was authorized R&R leave from 11 June 2005 to 29 June 2005.  He also provides copies of email message strings that show, in pertinent part, that his leave was extended through 12 July 2005, he kept his chain of command and administrative support staff informed of his status during the period under review, and complied with the orders and instructions that were provided to him.

     b.  Copies of Headquarters, 1st Battalion, 119th Field Artillery, Lansing, Michigan, memorandum, dated 28 July 2005; Headquarters, 306th Military Police Battalion (I/R), Baghdad Correctional Facility (Iraq), memorandum, dated 28 July 2005; Headquarters, 306th Military Police Battalion, Baghdad Correction Facility (Iraq), memorandum, dated 29 July 2005; and Headquarters, 18th Military Police Brigade (Iraq), memorandum, dated 8 August 2005.  These documents show, in pertinent part, that the applicant submitted his request for hardship discharge on 28 July 2005, his company commander and battalion commander recommended approval of his release from the Theater of Operations and hardship discharge and, and that his brigade commander approved the applicant's request for release and his hardship discharge.

     c.  Separation Leave Records: Request for Payment of Accrued Leave, dated 24 August 2005, that shows, in pertinent part, he was carried in a leave status for the period 11 June 2005 through 22 August 2005, had -49 days accrued leave, and the leave was nonpayable.

7.  In the processing of this case, an advisory opinion was obtained from the Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, DC, dated 10 January 2007.  This document offers a review of the applicant's leave status, personal situation upon return to the continental United States (CONUS) from Iraq, and request for hardship discharge.  Their review also confirms the fact that the applicant remained in daily contact with his deployed unit, as well as the unit's rear detachment staff.  Consequently, the advisory official opines that the applicant should not have been charged for additional leave dates after 12 July 2005 when his emergency leave period ended and his request for a compassionate reassignment/hardship discharge from the Army was initiated.  Based on a review of the facts surrounding the applicant's case, the advisory official recommends retroactively correcting the date entered on the applicant's DA Form 31, block 22, which indicated the date he was signed in off of emergency leave, from 22 August 2005 to 12 July 2005.

8.  On 23 January 2006, this Agency referred the advisory opinion to the applicant for his review and comments within 15 days of the date of the letter.  The applicant indicated his concurrence with the advisory opinion by signing, dating, and returning the document on 29 January 2007.

9.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  Paragraph 4-23 (Rules to use Rest and Recuperation leave - designated areas) states that rest and recuperation is a chargeable leave program that authorizes use of ordinary leave to allow Soldiers leave away from hostile fire and imminent danger areas.  The unit commander is the approval authority for R&R leave.

10.  Army Regulation 600-8-10, paragraph 6-1 (Rules to request emergency leave) provides, in pertinent pat, that Soldiers may request emergency leave with or without American Red Cross verification, as most Soldiers are mature and responsible individuals whose emergency leave needs can be considered on their merits.  The unit commander is the approval authority.  Soldiers may be authorized emergency leave for up to 30 days for emergency situations within the immediate family.

11.  Army Regulation 600-8-10, paragraph 5-23 (Rules to request excess leave for Soldier awaiting administrative discharge) provides that Soldiers awaiting completion of administrative discharge proceedings may request an indefinite period of excess leave.  The General Court-Martial (GCM) authority, or his or her designee, is the approval authority. The GCM authority approves when excess leave would be in the best interests of the unit to which the Soldier is attached and when leave will not interfere with timely processing or separation.  Soldiers granted excess leave while awaiting administrative discharge are charged ordinary leave until accrued leave is exhausted.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 6 (Separation Because of Dependency or Hardship), paragraph 6-3 (Criteria) provides that Soldiers on active duty may be discharged or released because of genuine dependency or hardship.  It states that hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.

13.  Army Regulation 635-200, paragraph 6-6 (Application for separation), provides that the Soldier must request, in writing, separation from the Service because of dependency or hardship.  A person assigned to an overseas unit who is temporarily in the United States on leave or temporary duty will submit an application to the commander of the Army installation nearest the Soldier's leave address or the installation to which temporarily assigned.  Applications for dependency or hardship separation from personnel en route overseas may be accepted at the Army installation nearest the Soldier's leave address, if an interview reveals information that may justify separation.  The Soldier will be attached at that installation until a final decision is made on the application. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the ending date of his emergency leave should be corrected and he should receive payment of all pay and allowances due for the period he was erroneously carried in an excess leave status.

2.  The advisory opinion recommends approval of the applicant's request based on the fact that his leave should have been terminated on 12 July 2005 and he should have reported to his local armory/post for duty, pending a determination on his request for hardship discharge.

3.  The evidence of record shows that the applicant was stationed in Iraq and returned to CONUS on R&R leave.  The evidence of record also shows that, while in CONUS the applicant experienced difficulties in his family that necessitated a 15-day leave extension.  Throughout this period, the applicant kept his chain of command and unit administrative support staff fully informed of his personal status and family situation.

4.  The evidence of record shows that the applicant was unable to satisfactorily resolve his family situation or obtain a compassionate reassignment to CONUS. Consequently, he reluctantly advised his chain of command of his decision to submit a request for hardship discharge.  The evidence of record also shows that the applicant exhausted his accrued leave.  The evidence of record further shows that a person assigned to an overseas unit who is temporarily in the United States on leave or temporary duty will submit an application to the commander of the Army installation nearest the Soldier's leave address.  In the case of the applicant, he was on leave in CONUS in close proximity to his home station; therefore, his request was submitted to his unit (i.e., the rear detachment commander).  Consequently, the applicant's attachment to another unit or installation was not necessary.  The evidence of record further shows that, at the time the applicant's chain of command acknowledged that his request for hardship discharge was being reviewed, the applicant's (emergency) leave status should have been terminated and his duty status changed to present for duty.

5.  In view of the evidence of record and the foregoing discussion, the applicant's records should be corrected to show that the period of his chargeable leave was from 11 June 2005 through 12 July 2005.

BOARD VOTE:

__JEA___  ___SWF_  ___RSV_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 by showing the applicant was:

     a.  in an authorized leave status from 11 June 2005 through 12 July 2005;

     b.  present for duty at his home station (i.e., Headquarters and Headquarters Battery, 1st Battalion, 119th Field Artillery, Lansing, Michigan, from 13 July 2005 through 22 August 2005; and

     c.  reassigned to the Installation Support Battalion, Fort Dix, New Jersey, for transition processing, effective 23 August 2005.

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment of all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of this correction.



_____James E. Anderholm______
          CHAIRPERSON



INDEX

CASE ID
AR20060008724
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/06
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
121.0300.0000
2.
121.0200.0000
3.

4.

5.

6.