RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 January 2008
      DOCKET NUMBER:  AR20070011752


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Mr. David K. Hassenritter         |     |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, payment of accrued leave due at
discharge.

2.  The applicant states, in effect, he should have been paid for accrued
leave at the time of his discharge.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the Regular Army and
entered active duty on 7 June 1978.

3.  On 7 February 1980, a special court-martial (SPCM) convicted the
applicant of two specifications of violating Article 128 of the Uniform
Code of Military Justice (UCMJ) by striking a male military police officer
and striking a female military police officer, who were in the execution of
their duties.  The resultant punishment included confinement at hard labor
for six months and a bad conduct discharge (BCD).

4.  On 23 December 1980, the applicant was separated with a BCD.  The
separation document (DD Form 214) he was issued at the time shows he
accrued 145 days of time lost due to confinement between 7 February and
1 July 1980, and 175 days of time lost due to excess leave between 2 July
and 23 December 1980.

5.  The applicant's record is void of any pay records or vouchers
indicating the amount of leave he had accrued and/or took between 7 June
1978, the date he entered active duty and 7 February 1980, the date he
entered confinement.
6.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the Army's
leave and pass policies.  Paragraph 2-3 contains guidance on leave accrual,
and states, in pertinent part, that Soldiers on active duty earn 30 days of
leave a year with pay and allowances at the rate of 2 1/2 days a month.
This entitlement excludes periods of absent without leave (AWOL);
confinement resulting from a court-martial sentence; confinement for more
than 1 day while awaiting
court-martial provided Soldier is convicted; excess leave; and unauthorized
absence because of detention by civil authorities.

7.  Paragraph 2-5 of the leave and pass regulation contains guidance on
subtracting leave credit.  It states, in pertinent part, that leave is
subtracted for lost time, excess leave, or other non-pay status.  It
further states that 2 1/2 days leave will be subtracted for each full month
of absence and that part-month subtraction will be as follows:  1/2 day
subtracted for 1-6 days of time lost; 1 day subtracted for 7-12 days of
time lost; 1 1/2 days for 13-18 days of time lost;
2 days for 19-24 days of time lost; and 2 1/2 days for 25-31 days of time
lost.

8.  Paragraph 5-19 of the leaves and pass regulation contains guidance on
involuntary excess leave pending punitive discharge.  It states, in
pertinent part, that excess leave may be directed if the Soldier is
sentenced by court-martial to dismissal or a punitive discharge or Soldier
is awaiting completion of appellate review.  Soldiers required to take
leave, who have leave to their credit, may elect one of the following:
receipt of pay and allowances during the period of accrued leave, with
leave beyond that which was accrued charged as excess leave; payment for
leave accrued to the Soldier's credit on the day before the day excess
leave begins with the total period of required leave charged as excess
leave; a combination of receipt of pay and allowances during the period of
accrued leave and accrued leave payment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is due pay for accrued leave he had
at the time of his discharge was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant entered confinement on
7 February 1980, and entered an excess leave status on 2 July 1980, which
ended on 23 December 1980, the date of his discharge.  As a result, he
accrued no leave between 7 February and 23 December 1980.

3.  Further, there are no pay records contained in the applicant's record,
and he has failed to provide any pay records or vouchers indicating the
amount of leave he accrued and/or took between 7 June 1978, the date he
entered active duty and 7 February 1980, the date he entered confinement;
or any separation processing documents that reflect any final payments he
may have received.  As a result, there is an insufficient evidentiary basis
to support granting the requested relief in this case at this late date.

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JI ___  __ENA __  __DKH __  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.




                                  ____John Infante________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070011752                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/01/DD                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1980/12/23                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |C-M                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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