IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140016896 


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 payment of accrued leave.

2.  The applicant states, in effect:

* he entered the Army on the 90-day delayed entry program; he enlisted for 4 years and was to receive a bonus upon completion of advanced individual training (AIT)
* he took basic combat training (BCT) at Fort Leonard Wood, MO and went to Fort Benning, GA, to attend AIT for military occupational specialty (MOS) 11C (Indirect Fire Infantryman)
* following AIT he was assigned to a unit at Fort Stewart, GA in the MOS 11C; while at Fort Stewart he received a court-martial and was sent to the Retraining Brigade
* he graduated from the Retraining Brigade and they changed his MOS to 13F (Fire Support Specialist); this change in his MOS violated his contract
* he was sent to Fort Knox, KY where he was again court-martialed; he stayed in the stockade for 3 months but was not taken to court
* his attorney told him he (the applicant) would be out of the Army after leaving the stockade, but he had to wait for his paperwork to be processed
* at Fort Knox, they brought him to a captain's office where he was surrounded by white officers; he feared they would kill him
* he was taken to be out-processed, and was told, for the purposes of receiving the bonus, he had violated his contract; the bonus was $2,600 [shown in his records as $2,500]
* he had not violated his contract; however, but his MOS was involuntarily changed
* he had about 80 days of leave accrued; his earned leave was taken from him and it was not paid to him when he separated from the Army
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the days for which he was not paid

3.  The applicant provides no additional documentary evidence.

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.  After a period of delayed entry, the applicant enlisted in the Regular Army on 22 March 1977 for a term of 4 years.  His available records contain a DA Form 3286-17 (Statement of Enlistment, Part VI - U.S. Army Cash Bonus Enlistment Option), signed by the applicant on 22 March 1977.  It states, in pertinent part:

* Upon being awarded MOS 11C, he would be paid an enlistment bonus of $2,500
* The bonus would not be paid if:

* he voluntarily or because of misconduct failed to satisfactorily complete AIT
* he became disqualified for duty in MOS 11C as a result of his own misconduct; in this case he could be required to repay the unearned portion of the bonus
* as a result of misconduct, he did not complete the term for which the bonus was paid; in this instance, he would be required to refund that percentage of the bonus that was unearned


3.  After completing initial training, he was awarded MOS 11C.  On 21 March 1978, his MOS was changed to 13F.  The highest rank/grade held was private two/E-2.  His DA Form 2-1 (Personnel Qualification Record - Part II) contains the following:

	a.  Item 6 (MOS) shows the award of MOS 11C on 7 July 1977 and MOS 13F on 21 March 1978.

	b.  Items 21 (Time Lost) and 28 (Item Continuation) show multiple periods of absence without leave (AWOL) and one period of imprisonment:

* 26 September 1977 to 27 September 1977, AWOL
* 25 October 1977, AWOL
* 28 January 1978 to 29 January 1978, AWOL
* 16 March 1978 to 20 March 1978. AWOL
* 6 July 1978 to 27 July 1978, Imprisonment
* 3 March 1979 to 5 March 1979, AWOL
* 3 December 1979 to 5 December 1979, AWOL
* 3 January 1980 to 14 January 1980, AWOL
* 29 January 1980 to 15 February 1980, AWOL

	c.  Item 35 (Record of Assignments) shows the applicant was assigned to:

* Fort Stewart from on or about 20 July 1977 to on or about 5 July 1978
* Installation Detention Facility, Fort Gordon, GA from on or about 6 July 1978 to on or about 18 July 1978
* U.S. Army Retraining Brigade, Fort Riley, KS from on or about 19 July 1978 to 19 September 1978
* Fort Knox from on or about 4 October 1978 to 20 March 1980

4.  His record is void of any documentation which would explain the basis for changing his MOS to 13F.

5.  His DA Form 2-2 (Insert Sheet to DA Form 2-1, Record of Court-Martial Conviction) shows he was convicted by a special court-martial on 6 July 1978 of one specification of AWOL for the period 16 March 1978 to 21 March 1978 and one specification of striking his superior noncommissioned officer.  He was sentenced to reduction in rank to private/E-1, confinement for 40 days and forfeiture of pay.  

6.  The applicant's record contains a DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 23 July 1979, which shows the applicant was pending a general court-martial for violation of Articles 90 (assault of a commissioned officer) and Article 134 (communicating a threat).  There is no indication in his record as to the outcome of these charges.

7.  On 25 February 1980, the applicant's commander informed him he was initiating separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program).

8.  On 17 March 1980, the separation authority approved the commander's recommendation for separation.  He directed the applicant be issued a general discharge under honorable conditions.  On 20 March 1980, the applicant was discharged accordingly.

9.  Of the 4 years for which he had enlisted, his DD Form 214 shows he completed a total net active creditable service of 2 years, 9 months, and 17 days.  

* The character of service is listed as under honorable conditions
* The separation authority is shown as Army Regulation 635-200, paragraph 5-31h(2) (Discharge of those members deemed to have no potential for useful service under conditions of full mobilization)  
* The narrative reason for separation was Expeditious Discharge Program (EDP), failure to maintain acceptable standards for retention
* Item 29 (Dates of Time Lost during this Period) (and continued in item 18 (Remarks)) shows nine periods of lost time:

* 26 September 1977 to 27 September 1977
* 25 October 1977
* 28 January 1978 to 29 January 1978
* 11 March 1978 to 20 March 1978
* 6 July 1978 to 27 July 1978
* 3 March 1979 to 5 March 1979
* 3 December 1979 to 5 December 1979
* 3 January 1980 to 14 January 1980
* 29 January 1980 to 15 February 1980

10.  Army Regulation 630-5 (Leaves, Passes, Administrative Absence, and Public Holidays), in effect at the time, prescribed the policies for the leave and pass function of the Army Military Personnel System.  

	a.  Paragraph 3-1 (Leave accrual) 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 AWOL, confinement as a result of court-martial, and confinement for more than 1 day while awaiting court-martial, provided the court-martial results in conviction.  

	b.  Paragraph 3-2 (Limitations) states the total accumulation of accrued leave at the end of a fiscal year will not exceed 60 days.

11.  Part Four (40101-40603) of the Department of Defense Pay Manual (DoDPM), in effect at the time, provides that a military member can be paid for no more than 60 days of accrued leave during a military career.  This stipulation became effective 10 February 1976.  

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to be paid for about 80 days of leave, which he asserts he accrued while on active duty and should have been paid on separation.  He contends his DD Form 214 shows the days for which he was not paid.

2.  As to the amount which might have been accrued by the applicant, he states he believes he had more than 80 days.  The DoDPM, however, permits the payment of no more than 60 days of accrued leave in a military career.

3.  Regarding the accrued leave for which the applicant could be paid, neither the applicant's record nor the applicant offer any proof of the number of days, if any, of accrued leave the applicant may have had at the time of his separation.  The dates shown on his DD Form 214 do, as he states, reflect days for which he was not paid.  He was not paid, however, because those dates reflected duty statuses for which no pay was due (AWOL and confinement).  Additionally, those days shown as AWOL or in confinement are, by regulation, excluded from the entitlement to leave accrual.  

4.  The applicant asserts his MOS was involuntarily changed from 11C to 13F and contends this violated his contract.  It is presumed from a presumption of regularity, however and, barring evidence to the contrary, it is assumed what the Army did was correct and proper.  He also mentions he was paid a bonus, but does not address what occurred after his MOS was changed, or whether any portion was required to be repaid.  As a result, there is insufficient evidence to properly address this issue any further.

5.  Based upon the foregoing, the applicant has not provided sufficient evidence to support payment for leave accrued prior to his separation.  As such, the requested relief should not be granted.

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)                                         AR20140016896





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ABCMR Record of Proceedings (cont)                                         AR20140016896



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