IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090018478 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through his elected representative, that the terminal leave [regular leave for transition to retirement] he used be changed to convalescent leave and, as a result, that he be paid for 79.5 days of leave.

2.  The applicant states he has unsuccessfully attempted to rectify this matter through other channels.

3.  The applicant provides the following history of events:

	a.  He was placed on orders effective 4 May 2007 assigning him to the transition point for out-processing with a retirement date of 31 August 2007.

	b.  On 6 May 2007 he injured his knee when his son's motorcycle fell on his leg.

	c.  On 7 May 2007 he was treated for his knee injury and was scheduled for surgery on 18 October 2007.

	d.  On 20 August 2007, he was seen by an Air Force physician who gave him limited restrictions for a physical profile.

	e.  On 27 August 2007, while taking the second part of his separation physical examination, the California Army National Guard (CAARNG) was contacted regarding his possible extension on active duty and stated that the applicant could not be retained on active duty unless he was found unfit to retire and was referred to the Physical Disability System.

	f.  On 31 August 2007, he was retired for years of service.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he entered State-funded active duty (Title 32, U.S. Code) on 21 March 2005 as a staff sergeant with 18 years, 2 months and 8 days prior active service.

2.  On 13 March 2007, the applicant completed a form in conjunction with his request for retirement.  In that form the applicant requested 82 days of transition leave to be taken in conjunction with his retirement.  The leave was to begin 11 June 2007 and end 31 August 2007.  The applicant also requested permissive temporary duty (TDY) beginning 7 May 2007 and ending 1 June 2007.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows on 6 May 2007 the applicant was treated for injuries to his right leg and knee.  This form shows the applicant was diagnosed with a torn anterior cruciate ligament (ACL) and numerous bone fragments inside his right knee.  It also shows the applicant was scheduled for surgery on 18 October 2007.

4.  On 31 August 2007, the applicant was retired for years of service.

5.  On 14 March 2008, the Secretary of the Army authorized the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA M&RA) to order the applicant to active duty to receive medical care for his knee.  On the same day, the ASA M&RA ordered the applicant back to active duty from the Retired List for the purpose of receiving medical treatment.

6.  On 5 July 2008, the applicant was ordered to active duty in an active duty medical extension status.  On 11 December 2009, additional active duty orders were issued for the applicant.  The purpose of these active duty orders was to process the applicant under the Uniform Code of Military Justice (UCMJ).

7.  The applicant was honorably released from active duty on 15 January 2010.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that he had lost time from 22 October 2009 to 14 January 2010.



8.  Submitted by the applicant is a DA Form 31 (Request and Authority for Leave) which shows he requested convalescent leave on 3 April 2007 (1 month and 3 days prior to his injury).  The electronic signature (unreadable) approving the leave is dated 19 December 2008 (1 year and 7 months after his injury).

9.  In the processing of this case, an advisory opinion was obtained from the Defense Finance and Accounting Service (DFAS).  The advisory official stated the applicant was injured on 7 May 2007 and was placed on 31 days of convalescent leave with a return to duty of 7 June 2007.  From 11 June 2007 to 31 August 2007, the applicant took 82 days of terminal leave.  The advisory official continues that unless there is additional information that places the applicant in another status for the terminal leave period, he is not entitled to additional pay.  The applicant was provided a copy of the advisory opinion and did not submit any additional matters of consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not provide and his available records do not contain his medical records.  The only indication of the extent of the applicant's injury is contained on his DA Form 2173 which states he was diagnosed with a torn ACL and had numerous bone fragments inside his knee.

2.  The applicant stated in his history of events that prior to his retirement, an Air Force physician returned him to duty with physical profile restrictions.  As such, it would appear the applicant could function reasonably well at that time.  However, DFAS confirmed the applicant was, in fact, given convalescent leave for 31 days immediately following his injury.  He wasn't placed on terminal leave until after his period of convalescent leave.

3.  There is no evidence or indication that any physician determined the applicant required any additional convalescent leave until after his operation.  The applicant was ordered to active duty to provide medical treatment and income for the subsequent recuperation period.

4.  It is abundantly clear the applicant was provided all available benefits provided by law to Soldiers who are injured while on active duty.  As such, there is no basis for granting his request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  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.



      __________X__________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090018478



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018478



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1