IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140014550 


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, correction of his records to credit him for annual leave days that should have been non-chargeable convalescent leave.

2.  The applicant states, in effect, that an error in his last pay on active duty showed he had less accrued leave days than what he was entitled to, resulting in less pay due to him.  He also states that nobody cared to fix the problem at the Fort Irwin [California], Defense Finance and Accounting Service (DFAS) office.  The issue, he states, is he was mistakenly charged convalescent leave as regular leave, which resulted in him being overcharged leave days.  His commander tried to fix the mistake, but Fort Irwin DFAS did nothing.

3.  The applicant provides:

* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 042-0027, issued by Headquarters, National Training Center (NTC) and Fort Irwin, California, dated 11 February 2014
* two memoranda from his commander, subject: Discrepancy in Charged Leave Days Erroneous, both dated 24 April 2014
* DA Form 31 (Request and Authority for Leave), for dates 12 December 2013 to 10 January 2014
* a memorandum, issued by U.S. Army Medical Department Activity (MEDDAC), Fort Irwin, CA, subject: Recommendation for Convalescent Leave for 30 days, dated 5 December 2013
* a Work Status Report for a scheduled surgery date of 12 December 2013, from the applicant's civilian podiatrist doctor, dated 5 December 2013
* a memorandum, issued by U.S. Army MEDDAC, Fort Irwin, CA, dated    13 January 2014, subject: Recommendation for Convalescent Leave for over 30 days 
* a Work Status Report for surgery date of 12 December 2013, from the applicant's civilian podiatrist doctor, dated 29 April 2014
* DA Form 31, covering the period 11 January to 12 January 2014 
* DA Form 31, covering the period 13 January to 17 January 2014 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 April 2003.  He completed training and was awarded military occupational specialty 88M (Motor Transport Operator).  He was promoted through the ranks to staff sergeant (SSG)/E-6.

2.  His DD Form 214 shows he was retired from active duty on 15 May 2014, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, temporary (enhanced).  Item 16 (Days Accrued Leave Paid) of his DD Form 214 shows the entry "0."

3.  He provided the following documents:

a.  A Work Status Report from a civilian podiatrist doctor – Dr. T.S., dated           5 December 2013, which shows he was scheduled for surgery on 12 December 2013 and he should be on convalescence leave from 12 December 2013 to      12 January 2014.

b.  Memorandum for Record, from U.S. Army MEDDAC, Fort Irwin, CA, dated 5 December 2013, subject: Recommendation for Convalescent Leave for30 days, which states, in effect:

	(1)  The applicant has undergone scheduled surgery for his foot.
	(2)  He should have 32 days of convalescent leave, from 12 December 2013 to 12 January 2014.
	(3)  Per recommendation from his podiatrist, Dr. T.S., he will be reevaluated on 13 January 2014.  At that point recommendations can be established for the Soldier to return to work, or need for additional convalescent leave. 
	(4)  A convalescent leave of more than 30 days is at the discretion of the unit, and if agreed to, should be forwarded to the command and MEDDAC Commanders for approval. 

   c.  DA Form 31, for 30 days as non-chargeable convalescent leave for the period 12 December 2013 to 10 January 2014, signed by the medical commander. 

     d.  DA Form 31, for 2 days as non-chargeable convalescent leave for the period 11 January 2014 to 12 January 2014, signed by the medical commander. 

     e.  A Work Status Report from a civilian podiatrist doctor – Dr. T.S., dated      5 December 2013, stating surgery date of 12 December 2013 and requesting additional convalescence leave from 13 January 2014 to 17 January 2014.

     f.  Memorandum for Record, from U.S. Army MEDDAC, Fort Irwin, CA, dated 13 January 2014, subject: Recommendation for Convalescent Leave for over 30 days, which states, in effect:

		(1)  The applicant has undergone scheduled surgery for his foot.

		(2)  Request of 5 additional days of convalescent leave for this Soldier, from 13 January 2014 to 17 January 2014.

		(3)  Per recommendation from his podiatrist, Dr. T.S., he has been reevaluated on 13 January 2014 and deemed to be fit for duty on 18 January 2014.

		(4)  A convalescent leave of more than 30 days is at the discretion of the unit and if agreed to be forwarded the command and MEDDAC Commanders for approval.

     g.  DA Form 31, for 5 days as convalescent leave and as non-chargeable leave for dates 13 January 2014 to 17 January 2014, signed by the medical commander.

     h.  Memorandum for Finance Office: Control Section from Commander, Alpha Company, Operations Group, National Training Center, Fort Irwin, CA, subject: Discrepancy in Charged Leave Days Erroneous, dated 24 April 2014, wherein the commander states:

          "Request recoupment of leave days for (the applicant).  SM was charged leave from 21 December 2013 through 01 January 2014 as Ordinary Leave, during this time period SM should have been on Convalescent Leave.  SM did not take leave during this time period.  SM was on Convalescent Leave from       12 December 2013 to 12 January 2014." 

     i.  Memorandum for Finance Office: Control Section from Commander, Alpha Company, Operations Group, National Training Center, Fort Irwin, CA, subject: Discrepancy in Charged Leave Days Erroneous, dated 24 April 2014, wherein the commander states:

          "Request recoupment of leave days for (the applicant).  SM was charged leave from 20 January 2014 through 7 February 2014 as Ordinary Leave, during this time period SM should have been on Convalescent Leave.  SM did not take leave during this time period.  SM was on Convalescent Leave from 13 January 2014 to 17 January 2014." 

4.  On 14 October 2014, in the processing of this case an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army.  This official recommended denial of the applicant's request to re-credit annual leave days that he claims should have been non-chargeable convalescent leave, stating that:

     a.  Both DFAS and this office find no documentation to support the applicant's contention that he was authorized convalescent leave beyond the periods authorized by his doctor;

     b.  The applicant's foot surgery occurred on 12 December 2013 and following surgery was granted 30 days convalescent leave (12 December 2013 through   12 January 2014).  The doctor authorized an additional period of convalescent leave (13-17 January 2014 and deemed the applicant fit for duty on 18 January 2014.  There is nothing to indicate that the doctor or other competent medical authority granted any additional periods of convalescent leave.

     c.  His commander's memorandum, dated 24 April 2014, indicates that the applicant was charged normal leave for the period 21 December 2013 through    1 January 2014.  That is incorrect.  DFAS verified that the applicant was not changed [sic] leave for that period.  DFAS's leave audit also verified all other leave periods (convalescent, transition, permissive and ordinary leave) used by the applicant after surgery as correct and did not find any discrepancies or anomalies. 

5.  On 16 October 2014, the advisory opinion was forwarded to the applicant for acknowledgement and/or comments, but no response was received.

6.  The applicant contends an error in his last pay on active duty showed he had less accrued leave days than what he was entitled to resulting in less pay due to him.  Also, that no one at the Fort Irwin DFAS office care to fix his problem.  He also contends that the issue was from being mistakenly charged convalescent leave as regular leave resulting in him being overcharged leave days.

7.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the military Personnel System.  Paragraph 5-3 outlines the rules to use convalescent leave.  It states, in pertinent part, that convalescent leave is a nonchargeable absence from duty granted to expedite a Soldier's return to full duty after illness, injury, or childbirth.  The hospital commander or designee is the approval authority for convalescent leave for 30 days or less.  Hospital commanders are the only approval authority for request in excess of 30 days. 

8.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-2c, states the ABCMR will decide cases on the evidence of record.  It is not an investigative agency.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his record to credit annual leave days he claims should have been non-chargeable convalescent leave was carefully considered. 

2.  The applicant provided 3 DA Forms 31 providing him a total of 37 days of convalescent leave authorized by the hospital commander at Fort Irwin as nonchargeable leave, which was in accordance with applicable Army regulations. 

3.  The applicant contends an error in his last pay on active duty caused him to have less accrued leave days resulting in less pay due by being mistakenly charged convalescent leave as regular leave.  However, a combined review by DFAS and the Compensation and Entitlements Division of Army G-1, in an advisory opinion, stated that the convalescent leave time was not charged as normal leave and a thorough review/audit of his leave history confirmed that no discrepancies or anomalies existed.  

4.  The applicant was given a chance to submit comments on the advisory opinion but did not do so.  There is a presumption of regularity in the conduct of government affairs.  Without any additional evidentiary evidence, such as leave and earning statements, etc., the applicant failed to support his contention that an error or injustice occurred.

5.  Based on the foregoing, there is no basis for granting the requested relief.

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)                                         AR20130002384



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ABCMR Record of Proceedings (cont)                                         AR20140014550



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