IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120005221 


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:

* An adjustment of his retirement date from 30 June to 30 November 2011 and recalculation of his retired pay to reflect the additional active service
* Pay and entitlements based on the above correction
* award him credit for 107 days of leave that he lost
* all other relief the Board deems appropriate given his circumstances

2.  The applicant states, in effect, upon receipt of his retirement orders he only had 5 and 1/2 months to clear.  His surgery was scheduled only a few days prior to his approved retirement date and his request for an extension beyond his approved retirement date was denied.  However, he continued to serve on active duty beyond his retirement date in spite of having retirement orders. 

3.  The applicant provides approximately 58 pages of documentation.

CONSIDERATION OF EVIDENCE:

1.  He was serving in the rank of sergeant first class/E-7 and credited with more than 24 years of active service when Orders 007-0006 were published by Department of the Army U.S. Army Garrison, Fort Belvoir, dated 7 January 2011, releasing him from active duty effective 30 June 2011 and placing him on the retirement list effective 1 July 2011.
 
2.  A Headquarters, U.S. Army Medical Department Activity letter, dated 28 March 2011, stated he was scheduled to undergo a bunionectomy on 15 July 2011.  

3.  A DA Form 4187 (Personnel Action) shows, on 12 April 2011, his commander recommended disapproval of the applicant's request for a 6-month medical extension because his medical situation was a covered benefit under TRICARE Prime.

4.  A Headquarters, U.S. Army Medical Department Activity Memorandum for Record, dated 8 April 2011, stated the applicant had a meniscal tear which periodically caused his knee to lock.  The surgeon further stated the condition required surgery which was scheduled at DeWitt Army Community Hospital on 31 May 2011.

5.  A Headquarters, U.S. Army Medical Department Activity memorandum for the applicant's commander, dated 16 June 2011, recommended convalescent leave for the applicant during the period 21 June to 12 July 2011 following scheduled left knee arthroscopic surgery.

6.  The applicant submits a DA Form 31 (Request and Authority for Leave), dated 17 June 2011, indicating he requested 21 days of convalescent leave for the period 21 June through 11 July 2011 and a second DA Form 31, dated 17 June 2011, indicating he requested 30 additional days of convalescent leave for the period 12 July through 10 August 2011.  Neither request indicates whether the forms were further processed, approved, or disapproved.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was voluntarily retired for sufficient length of service for retirement effective 30 June 2011.

8.  A Headquarters, U.S. Army Medical Department Activity memorandum for the applicant's commander, dated 11 July 2011, recommended convalescent leave for the applicant during the period 11 July to 12 August 2011 following a scheduled left bunionectomy.

9.  He submits pay documents (Leave and Earnings Statements and online inquiries) related to an adjustment of his pay due to indebtedness to the government.



10.  The applicant also submits a DA Form 31, dated 11 August 2011, requesting 20 days of permissive temporary duty for the period 15 August through 3 September 2011 for the purpose of job hunting.  The form provides no evidence that the request was further processed, approved, or disapproved.

11.  The applicant submits Unit Personnel Accountability Reports showing he was in a duty status as of 25 September 2011.

12.  He submits a DA Form 4187, dated 20 October 2011, indicating he requested an exception to policy to have his retirement date adjusted from 30 June to 30 November 2011 so the Defense Finance and Accounting Service (DFAS) could offset the debt he acquired by being in an active duty status beyond his scheduled retirement date.  He further stated he had 105 days of annual leave and would like to utilize 105 days of earned leave to offset his DFAS debt prior to retirement.  He stated he was on convalescent leave due to surgery that was performed and determined necessary by a medical surgeon prior to his retirement date.  There is no indication the form was ever submitted for processing for approval or disapproval.

13.  He submits a DA Form 4187, dated 20 October 2011, indicating he requested 20 days of permissive temporary duty for the purpose of job hunting and transitional leave dates of 4 September - 30 November 2011.  There is no indication the form was ever submitted for further processing for approval or disapproval.

14.  He submits a memorandum from a chaplain, dated 25 October 2011, recommending the applicant receive assistance obtaining an extension due to his medical and financial needs.

15.  He submits a memorandum from the Headquarters, Warrior Transition Battalion commander to an elected representative, dated 3 December 2011.  The commander indicated the applicant had submitted multiple retirement packets for 30 September 2011.  The U.S. Army Human Resources Command (HRC) disapproved all requests due to the applicant being on assignment.  The applicant was notified in October 2010 that his retirement could not be favorably considered at the time because he was on assignment instructions and that he may only retire in lieu of permanently changing station or reassignments.  The applicant submitted an exception to policy which was also disapproved and he agreed to retire in lieu of permanently changing station.  The applicant's retirement orders were issued on 7 January 2011 giving him ample opportunity to fully out-process by 1 July 2011.  In April 2011, the applicant requested a 6-month medical extension that would postpone his retirement to on or about February 2012.  This request for extension was disapproved by the Chief of HRC Enlisted Retirements and Separations Branch, stating the original retirement date of 1 July 2011 remained in effect.  The commander further stated that as of         1 December 2011, the applicant was officially retired from the Army as the Fort Belvoir installation processed and issued a DD Form 214 without his signature due to his failing to properly clear [the installation].  Multiple attempts were made to contact the applicant in an effort to assist him; however, the applicant failed to return their calls.

16.  He submits a DFAS account statement showing a payment of $8,938.46 was due by 28 December 2011.

17.  He submits memoranda for record dated in January and February 2012 attesting to him being on duty after his surgery in June 2011.

18.  In the processing of this case, on 6 April 2012, an advisory opinion was obtained from the HRC, Operations Management Division.  The advisory official recommended denial of the applicant's request for return to active duty to out-process and exhaust accrued leave.  The official stated the applicant submitted his retirement request in lieu of a PCS assignment in December 2010.  The request for retirement was approved with an effective date of 1 July 2011.  The approval granted the applicant nearly 7 months to out-process and prepare for retirement which was more than sufficient time to complete the required tasks.

	a.  In April 2012 [sic], the applicant requested a retirement date change because he scheduled surgery after his approved retirement date.  This request could not be favorably considered because it did not meet the requirements outlined in Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12, paragraph 12-29b.

	b.  HRC could not address why the applicant did not exhaust his accrued leave, complete his retirement physical, or out-process.  Only the applicant's former chain of command could address why he continued to report for duty after his retirement date. 

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Paragraph 12-9, Retirement in lieu of PCS, states Soldiers having 19 years, 6 months or more of active federal service when notified of PCS may request a retirement date.
   
    	(1) The retirement date will not be later than 6 months from the date of notification, or the first day of the month following the month in which 20 years of active Federal service is completed, whichever is later.
   
   	(2)  Soldiers electing to retire under this provision will be required to retire immediately upon attaining retirement eligibility.
   
   	(3)  Applications for retirement in lieu of PCS that are approved will not be withdrawn, nor will the retirement date be changed.  The Soldier must retire on the approved retirement date.
   
   	(4) The retirement authority will set up procedures to ensure written acknowledgment by the Soldier of the reassignment notification.  Written acknowledgment will be used as confirmation of receipt of assignment instructions.

	b.  Paragraph 12-29 provides that if a Soldier who has requested retirement becomes hospitalized or has an identified medical problem he/she might be referred to a physical evaluation board.  If the physical evaluation board is not necessary, but additional medical care is, the retirement will be processed as a non-disability retirement.  Retirement dates will not be changed to continue medical treatment that will extend past the approved retirement date.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant voluntarily applied for retirement in lieu of PCS.  His voluntary retirement request was approved approximately 6 months prior to the effective date of 1 July 2011 in accordance with Army Regulation 635-200.  Chapter 12 is clear on retirement in lieu of PCS and the 6 months of time given for transitioning and out-processing.  There is no evidence that this is an insufficient amount of time to complete this process.

2.  Based on the available evidence it would be reasonable to conclude the applicant's medical conditions did not meet the criteria for granting him an extension beyond his scheduled retirement date.  Though it is not clear why the applicant did not complete the normal out-processing in the allotted time it is reasonable to presume as a sergeant first class/E-7 with more than 24 years of active service he understood his responsibilities in this regard.  It does appear it may have been in part due to his apparent desire to have surgery and convalescence while in an active duty status rather than utilize TRICARE, the Department of Veterans Affairs, or other options following retirement.  

3.  Furthermore, it would not be acceptable to allow Soldiers to arbitrarily decide whether to follow orders or act to suit their own desires as this case appears to demonstrate.

4.  While it may be unfortunate that the applicant acquired a financial hardship due to his actions there is no evidence of an error or injustice in his case.  Additionally, it appears he caused the circumstances resulting in the loss of leave and accrual of debt for which he now requests relief by failing to adhere to his retirement date.  Granting relief in his case would be affording him a benefit not offered to other Soldiers.  As such, there is an insufficient basis for granting the applicant's 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)                                         AR20120005221



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005221



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1