MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 August 2000
	DOCKET NUMBER:   AR2000040999

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that he be paid for 42.5 days of accrued leave he lost upon his retirement.

APPLICANT STATES:  In effect, that the government mandated his retirement which caused him to lose 42.5 days of accrued leave.  

EVIDENCE OF RECORD:  The applicant's military records show:

On 30 June 1980, he was released from active duty (REFRAD), in the rank and pay grade of SSG/E-6, under the provisions of chapter 12, Army Regulation 
635-200, by reason of length of service retirement.  At the time of his REFRAD the applicant had completed 20 years, 6 months, and 3 days of active military service.

In November 1979, the applicant was notified that he had been placed on assignment instructions for Germany, with a scheduled arrival date in July 1980.  Upon being notified of this assignment, he elected to request retirement in lieu of accepting the permanent change of station (PCS).

The DA Form 2339 prepared by the applicant is on file in records.  This form verifies that on 2 January 1980, he submitted his request for retirement, in lieu of accepting a permanent change of station (PCS) and that he requested a retirement date of 30 June 1980.  This retirement request was approved by the appropriate authority on 11 March 1980.

On 28 May 1980, the applicant requested that his retirement be withdrawn and that he be allowed to accept his promotion and serve the 2 year active duty service obligation.  This request was supported by his chain of command; however, on 25 June 1980, the request was disapproved by the Chief of the Retirement Branch at the MILPERCEN.  The MILPERCEN denial was based on the applicant having requested retirement in lieu of accepting an overseas assignment, which placed him in a non-promotable status on the date of his promotion.

The applicant’s Official Military Personnel File (OMPF) contains no evidence that the applicant ever requested or was denied leave during the time period between his requesting retirement in lieu of PCS and the date his request to withdraw his retirement was disapproved by MILPERCEN.

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.  The regulation indicates that the leave and pass is designed to allow soldiers to use their authorized leave to the maximum extent possible.  

The leave regulation also specifies that in pursuing the maximum use of leave, commanders must place emphasis on granting leave to allow use of leave prior to separation and that it is not the intent of the leave policy that large leave balances be accrued expressly for settlement upon soldier's release from active duty.  Paragraph 2-3 (Leave Accrual) states, in pertinent part, that except when authorized special leave accrual, soldiers may accrue and carry forward up to 
60 days leave at the end of each fiscal year and any accrued leave that exceeds 60 days at the end of the fiscal year is lost except as authorized under special leave accrual provisions. 

Paragraph 2-4 (Payment of Accrued Leave) indicates that payment of accrued leave is made under the provisions of the Department of Defense Pay Manual and that by law, payment of accrued leave is limited to 60 days one time during a military career, unless earned under special accrual provisions.

Paragraph 3-1 (Concept) states, in pertinent part, that the leave program is designed to encourage the use of leave as it accrues rather than to accumulate a large leave balance.  Soldiers who build their leave balance to the maximum level risk losing their leave should a situation occur that prevents or delays leave use. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contention that he lost 42.5 days of accrued leave because he was forced to retire for the convenience of the government.  However, this claim is not supported by either the evidence or record or the independent evidence submitted by the applicant.

2.  The evidence of record clearly shows that the applicant voluntarily requested retirement, in lieu of PCS, six months prior to his actual retirement date.  Further, the OMPF is void of any evidence that would suggest that the applicant ever requested to take leave or that he was denied leave by his commander during this period.  Therefore, the Board concludes that the requested relief is not warranted in this case.  

3.  The Army’s established leave program is designed to encourage the use of leave as it accrues rather than to accumulate a large leave balance.  The regulation specifically cautions soldiers that in building a maximum leave balance, they risk losing their leave.  In addition, by law, payment of accrued leave is limited to 60 days one time during a military career, unless earned under special accrual provisions.  The Board finds no basis to grant an exception to allow special leave accrual in this case and that payment for the lost leave is not appropriate.
4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___tdh __  __gw____  ___ao___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040999	
SUFFIX		
RECON		
DATE BOARDED	2000/08/15	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1980/06/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  283	128.0000	
2.		
3.		
4.		
5.		
6.