IN THE CASE OF:	  

		BOARD DATE:  29 May 2012

		DOCKET NUMBER:  AR20110021118 


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, in effect, restoration of 12 days of leave.   

2.  He states he completed Army Career and Alumni Program (ACAP) appointments, cleared his unit, and attended medical appointments while on terminal leave.

3.  He provides a memorandum for record (MFR), a self-authored statement, and an e-mail.

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.  On 7 November 2005, the applicant was honorably discharged from the Regular Army and enlisted in the U.S. Army Reserve (USAR).  On 7 November 2006, he entered active duty in the Active Guard Reserve Program.  

3.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 10 June 2008, shows the applicant was found medically unfit to perform the duties of his rank and primary specialty.  The PEB assigned him a 40 percent disability rating and recommended that he be retired due to permanent physical disability.  

4.  On 27 June 2008, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB recommendation to retire him for permanent disability.  

5.  A Physical Disability Information Report, dated 3 July 2008, shows he was to be separated on 25 September 2008 and placed on the retired list the following day.  The report shows the entry "0" for number of days of permissive temporary duty and number of days of transition leave (formerly known as terminal leave).  

6.  On 29 August 2008, the U.S. Army Human Resources Command, St. Louis, MO, issued Orders C-08-890694 releasing him from assignment and duty because of physical disability, effective 25 September 2008, and placing him on the retired list the following day.  The orders do not address transition leave.

7.  On 25 September 2008, he was retired due to permanent disability.  

8.  His record is void of documentation showing the dates he was on transition leave or the dates of the various appointments he was required to attend while he was out-processing.  

9.  He provides a self-authored statement in which he indicates he was going through ACAP at Fort Knox, KY, during terminal leave.  He states his leave from 12 through 25 September 2008 should be cancelled.  

10.  He also provides:

	a.  An MFR, dated 18 March 2011, from the Unit Administrator, 801st Combat Support Hospital, Indianapolis, IN, stating he was assigned to that unit and on duty status during his ACAP processing, out-processing, and at the time of terminal leave.

	b.  An e-mail from a contractor in the Special Programs Office, ACAP, Fort Knox, KY, who states the applicant worked with various ACAP staff members periodically between 9 April and 24 September 2008.  (The earlier date may be an error and may have been intended to read 4 September 2008).  

11.  On 29 December 2011, during the processing of this case, the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, provided an advisory opinion recommending denial of the applicant's request.  

	a.  The e-mail provided by the applicant indicating he periodically worked with ACAP staff members in September 2008 is immaterial, since there is no statutory requirement that Soldiers be granted time off to attend transition workshops or classes.  Additionally, the applicant provided no documentation to indicate his unit denied him adequate time off to attend these classes or the necessary work days to complete his separation out-processing.

	b.  Soldiers separating or retiring from the Army are normally provided active duty time off to attend transition workshops, ACAP, and classes, which can be attended several months before a scheduled separation or retirement.  Additionally, Soldiers with a scheduled separation/retirement date are normally provided 10 work days to out-process the installation offices listed on the separation out-processing checklist.  Soldiers are also granted all time off necessary to complete their scheduled medical appointments.

12.  The applicant was given the opportunity to comment on the advisory opinion.  He did not respond within the time allotted.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the point in time for referral of a Soldier for disability separation or retirement is determined on an individual basis.  Normally, Soldiers who are not likely to return to duty will be processed as soon as this 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show the applicant was improperly required to complete ACAP appointments, clear his unit, and attend medical appointments during his 12 days of transition leave.  The available records do not show when he went on transition leave or how long he was on transition leave.


2.  Army Regulation 635-40 states separation or retirement should normally occur within 20 days of the date of the final determination of unfitness.  From the time the USAPDA approved the PEB recommendation through his retirement date, he had nearly 3 months available to complete any administrative processing required for his retirement.  

3.  Based on the available evidence, one cannot determine if he was unfairly forced to complete processing while on transition leave or if having to do so was simply a matter of poor time management. 

4.  In view of the foregoing, there is an insufficient basis for granting the relief requested.  

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)                                         AR20110021118



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ABCMR Record of Proceedings (cont)                                         AR20110021118



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