RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070007148 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Gerald J. Purcell

Member

Mr. John G. Heck

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, who is the husband of the deceased former service member (FSM), requests, in effect, correction of the FSM’s military records to show her date of disability retirement as 16 October 2005 and that she had increased her Serviceman’s Group Life Insurance (SGLI) to $400,000.00 effective 1 September 2005.   The applicant requests to personally appear before the Board.

2.  The applicant states, in effect, that the FSM was not afforded the opportunity to use all of her accrued ordinary leave and transition permissive temporary duty (PTDY) as authorized by regulation.  He makes the contention that she should have been granted convalescent leave.  This change in date of retirement would afford an additional 74 days of active duty.

3.  The applicant provides copies of the FSM’s Certificate of Release or Discharge from Active Duty (DD Form 214), retirement orders, Request and Authority for Leave (DA Form 31), Certificate of Death, a memorandum of support from The Adjutant General with attached statement, Kentucky Army National Guard, a memorandum of support from the Staff Judge Advocate, Office of The Adjutant General, Kentucky Army National Guard.

CONSIDERATION OF EVIDENCE:

1.  On 20 August 1990, the FSM entered active duty as a career member of the Kentucky Army National Guard.  The FSM served through a series of assignments and was retired due to permanent physical disability on 2 August 2005.  The FSM had attained the rank of sergeant major, pay grade E9 and had completed 17 years, 3 months, and 17 days of creditable active duty, and had 
13 years, 4 months, and 21 days of prior inactive service.

2.  Orders 168-0157, United States Armor Center and Fort Knox, Fort Knox, Kentucky, dated 17 June 2005, released the FSM from assignment and duty because of a physical disability incurred while entitled to basic pay and under conditions that permit retirement due to permanent physical disability.  The FSM was retired effective 2 August 2005 and placed on the retired list on 3 August 2005, with a permanent disability rating of 100 percent.  

3.  On 21 June 2005, a DA Form 31 was issued granting the FSM 48 days of ordinary leave from 16 June to 2 August 2005.

4.  The FSM’s DD Form 214 shows in Item 16 (Days Accrued Leave Paid) 29.5. 

5.   The FSM’s death certificate shows that she died on 5 November 2005 and that the applicant in this case was her surviving spouse.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, Arlington, Virginia.  The opinion stated, in part, that the FSM had to be placed on ordinary leave from 
16 June to 2 August 2005 to utilize all of her accrued leave in excess of the 
29.5 days that could be paid, as shown on her DD Form 214.  It contends that the FSM should have been afforded convalescent leave and administrative time because while she was on this ordinary leave, she was making medical appointments and completing other requirements for out-processing.  The opinion also states that the military personnel office at Fort Knox contacted the transition center and explained that the FSM’s situation would not permit her to use her accrued leave or 20 days of transition leave.  The Transition Center’s reply was that the Physical Evaluation Board (PEB) had established the date of retirement and that it could not be changed. [The PEB proceedings are not available for review.]

7.  On 12 March 2007, The Adjutant General, Kentucky Army National Guard, stated in a memorandum that the FSM’s date of separation should be changed to 16 October 2005.  The memorandum further states that the Human Resources Office, Kentucky Army National Guard tried to have this date changed.  The attached statement (undated and unsigned) indicates that the FSM was unable to use her leave or to receive 20 days of transition PTDY. 

8.  On 14 March 2007, the Staff Judge Advocate, The Office of The Adjutant General, Kentucky Army National Guard, stated in a memorandum that he had reviewed the request submitted by the FSM’s spouse and endorsed changing the FSM’s date of separation to 16 October 2005.  The memorandum further indicated that making this change would create an entitlement to receive increased SGLI benefits that the FSM would have been entitled to had her separation date been calculated correctly in the first place.

9.  Army Regulation 635-40, chapter 3, paragraph 3-14, provides that the point in time for referral of a Soldier for disability separation or retirement is determined on an individual basis.  Soldiers who are not likely to return to duty will be processed as soon as probability is ascertained.  Separation or retirement should normally occur within 20 days of the date of the final determination of unfitness by the Secretary of the Army.  However, Soldiers are entitled to use accrued leave in excess of that which cannot be sold back to the government.

10.  Army Regulation 600-8-10 (Leave and Passes) provides, in pertinent part, for the granting of transition PTDY in conjunction with involuntary separation, retirement, or separation under the Voluntary Separation Incentive and Special Separation Benefit Programs. Transition PTDY is not an entitlement.  Transition PTDY is authorized for the purpose of transition PTDY to facilitate transition into civilian life for house and job hunting. Transition PTDY may be taken in a series of trips prior to departing on transition but is not to exceed 20 days in the continental United States (CONUS) or 30 days outside of CONUS.  Soldiers in CONUS, who request PTDY in a series of trips, must be advised that PTDY begins and ends on post, duty location, or at the location where Soldier regularly commutes to and from work. Transition PTDY is chargeable during duty days (Monday through Friday, excluding weekends). Therefore, a Soldier taking 5 days PTDY may depart on PTDY Monday morning at 0001 hours and must return on or before 2400 hours Friday. Once a Soldier permanently departs the duty station or station of choice, he or she may not take transition PTDY in increments. Soldiers may not use PTDY in combination with ordinary leave without completing a duty day between the two periods of leave.

11.  Army Regulation 600-8-10 further provides that time to complete military administrative requirements is provided during normal working hours. Examples of check-out and check-in requirements include accomplishing procedures with military personnel offices, security and pass offices, billeting offices, and quarters clearance. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.  

2.  The available evidence shows that prior to the FSM’s permanent disability retirement she had an accrued leave balance of 78 days.  She was paid for 
29.5 days of this leave and given the remaining 48 days of accrued leave from 
16 June to 2 August 2005, as shown on her DA Form 31.  Therefore, the FSM was not denied any of her accrued leave.

3.  Transition PTDY is not an entitlement.  It is authorized for the purpose of facilitating transition into civilian life for house and job hunting.  There is no available evidence showing that the FSM was house or job hunting, or that her medical situation even permitted such activity.  Therefore, the request for 
20 days of transition PTDY should not be granted. 

4.  It is normal for Soldiers to be given administrative time during normal duty hours for the purpose of completing out-processing requirements.  In this case the applicant is, in effect, requesting 54 days of administrative time.  This is unreasonable and should not be granted.  Accordingly, the applicant is also not entitled to a correction to reflect an increase in the SGLI to $400,000.00.

5.  The contention that the FSM had to use her ordinary leave to complete administrative activities connected with her retirement; and to make medical appointments normally provided for by convalescent leave, is not supported by any available evidence.  Furthermore, there is no available evidence showing that the granting of convalescent leave in her situation would have been authorized by regulation.  

6.  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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ WDP__  __JGH __  __GJP _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




__ __William D. Powers _
          CHAIRPERSON
INDEX

CASE ID
AR20070007148
SUFFIX

RECON
 
DATE BOARDED
20071127 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136.0100
2.

3.

4.

5.

6.