MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  9 November 2000
	DOCKET NUMBER:  AR2000042533

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. Orville W. Troesch		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: That his records be corrected to entitle him to payment for unused leave.

APPLICANT STATES: That he was on convalescent leave and unable to use his ordinary leave or permissive temporary duty for retirement purposes.  He further indicates he did not request terminal leave.

COUNSEL CONTENDS: Counsel is silent on the issue.

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

On 26 November 1979, he enlisted in the Army Reserve Delayed Enlistment Program and served until 15 January 1980.

On 16 January 1980, he enlisted in the Regular Army and continued to serve until his honorable separation and retirement.

On 1 February 1996, he was promoted to the rank of sergeant first class (SFC), pay grade E-7.

On 17 September 1999, Orders 260-0104, Headquarters Fort McPherson, Fort McPherson, Georgia announced the non-disability retirement of the applicant effective 31 January 2000 with placement on the retired list on 1 February 2000.

The applicant’s duty station was in Puerto Rico and his elected retirement address was in Puerto Rico.

Based on a previous reenlistment, the applicant received payment for 60 days of accrued leave.

A medical officer at a Army Health Clinic recommended the applicant’s “convalescent” leave from a VA Hospital in Puerto Rico for the period                24 November until 24 December 1999, a total of 31 days.  The unit commander approved this leave.

The same officer recommended a second “convalescent” leave from                 25 December 1999 until 25 January 2000, a total of 31 days.  The unit commander approved this leave.

In a memorandum, dated 23 December 1999, to the applicant’s commander, a physician serving at a health clinic indicated the applicant recently received in-patient medical care at the Veterans Administration Hospital in Puerto Rico and recommended extending his active duty until 1 August 2000.  His request was denied.

In a memorandum, dated 8 January 2000, to the applicant’s commander, the physician indicated the applicant was being treated and closely monitored by the Mental Health Department of the Naval Hospital, Roosevelt Road, Puerto Rico.  He recommended “convalescent” leave for his condition.

In a memorandum, dated 16 January 2000, to the Department of Psychiatry, Eisenhower Army Medical Center, the physician indicates the applicant was admitted to a civilian phychiatric hospital in November 1999.  He was receiving outpatient care but was not improving.  He was facing mandatory retirement effective 1 February 2000.

On 24 January 2000, the applicant was authorized “Travel/Transition” leave for the period 27 to 28 January 2000.  This leave indicated the applicant had 36.5 days accrued leave available.

On 31 January 2000, the applicant was honorably separated from active service based on sufficient service for retirement and transferred to the Retired Reserve on 1 February 2000, in the rank of SFC.  His separation document indicates he has 20 years and 15 days of creditable service, and that he was not entitled to payment for accrued leave.  

Army Regulation 600-8-10 (Leaves and Passes) indicates, in pertinent part, that “convalescent” leave is a non-chargeable 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.  If the soldier is not hospitalized, the unit commander is the approval authority.  Hospital commanders are the only approval authority for requests in excess of 30 days.

The regulation further indicates that, by law, payment of accrued leave is limited to 60 days during a military career.  

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provides that when a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that they were unable to perform their duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 

Title 10, United States Code, chapter 1201, provides for the disability retirement of a member who has at least 20 years of service or a disability rated 30 percent disabling.

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 applicant is not entitled to payment for unused leave.

2.  Pertinent Army regulations indicate that a maximum of 60 days may be cashed in during an individual's career.  Evidence shows the applicant did receive payment for the maximum of 60 days.

3.  Regulations also state that only hospital commanders or their designated representatives and unit commanders have the authority to approve convalescent leave.  The unit commander who did not have that authority approved two leaves for 31 days each (24 November and 25 December 1999) at the recommendation of a physician working at the health clinic.

4.  The Board notes that the purpose of convalescent leave is to return the soldier to full time active duty service after illness, injury or childbirth.  The convalescent leave that the applicant was granted did not fulfill this intended purpose.

5.  Medical authorities use “medical” conditions to justify the use of convalescent leave; however, it is apparent in this case that they did not expect the applicant to return to duty, because after the two periods of leave, a third was recommended. If a medical condition did exist, he should have been processed by medical authorities under Army Regulation 635-40 into the Army Physical Disability System.  There is no evidence that this was accomplished.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  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

__jp___  ___bl_____  __ot____ DENY APPLICATION

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

INDEX

CASE ID	AR2000042533	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001109	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.121	Leave Adjustment	
2.		
3.		
4.		
5.		
6.