MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 September 2000
	DOCKET NUMBER:   AR2000042801

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Donald P. Hupman		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 62.5 days' pay and allowances.

APPLICANT STATES:  In effect, that he was scheduled to be separated on 31 October 1999 and retired on 1 November 1999 after a 62-day transition leave (31 August-31 October 1999).  In preparation for his separation and retirement, he took a physical examination in July 1999.  At that time, the examining physician suspected that the applicant had skin cancer and referred him to a dermatologist for a consultation.  On 10 September 1999, the applicant saw a dermatologist who began evaluating him for possible basal cell carcinoma and malignant melanoma.  The doctor wrote four memoranda recommending "an extension of [applicant's] terminal leave until such time [as medical evaluation is completed]."  The applicant's separation was delayed until 29 November 1999 and his medical treatment was completed on 24 November 1999.  He argues that he should not have been carried on transition leave while he was being evaluated and treated for skin cancer.  He believes his transition leave should have commenced on 1 December 1999 and terminated on 31 January 2000 followed by his retirement on 1 February 2000.

	In support of his application, the applicant provides:  four memoranda from his dermatologist (10 Sep 99, 18 Oct 99, 17 Nov 99, 24 Nov 99); a copy of 30 November 1999 DA Form 1559-R, Inspector General Action Request (IGAR), asking that his transition leave be restored; a 5 December 1999 letter to his Representative in Congress; an 11 February 2000 letter from the National Guard Bureau (NGB) Office of the Inspector General (IG) responding to his IGAR; a copy of a 6 March 2000 letter from his Representative in Congress forwarding the IG's response; a 2 March 2000 letter from the NGB IG to the applicant's Representative in Congress; a copy of Orders 112-011, dated 22 April 1999, dealing with the applicant's separation and retirement, and; a copy of Orders 291-010, dated 18 October 1999, amending Orders 112-011 by changing the applicant's retirement date to 30 November 1999.

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

He was a major in the Army National Guard (ARNG) serving in an Active Guard Reserve (AGR) assignment.  In preparation for his 1 November 1999 retirement, he underwent a separation physical examination in July 1999.  The examining physician suspected he had skin cancer and referred him to a dermatologist for further evaluation.  He received an appointment for 10 September 1999.

On 31 August 1999, the applicant signed out of his unit on transition leave.  When he went to his dermatology appointment, he was diagnosed with basal cell carcinoma and malignant melanoma.  He was treated on an outpatient basis and treatment was concluded on 24 November 1999.  The dermatologist wrote a memorandum, dated 10 September 1999, stating that he was treating the applicant and expected treatment to take 60 days.  He recommended extending the applicant's leave.  He wrote two more memoranda in which he updated the applicant's treatment and recommended continuing his leave.  On 24 November 1999, he wrote a memorandum stating that the applicant's treatment was concluded and that there was no further need to extend his leave.

The applicant's transition leave apparently ended on 31 October 1999; however, his separation was extended until 29 November 1999 and he was retired on 30 November 1999.

Army Regulation (AR) 600-8-10, Leaves and Passes, prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  It provides a single-source operating document to the field, and as such, is binding on all communities involved in granting leaves and passes.  This regulation establishes standards and provides an operational document in a logical sequence.  It states, in pertinent part, that an established transition date may be extended only for soldiers pending physical disability (AR 635-40).

Army Regulation 635-40, Physical Evaluation for Retention, provides, in pertinent part, that when a soldier's separation or retirement occurs during the course of a hospitalization or disability evaluation, he may be retained in service until released from the hospital or disability evaluation is completed.

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.  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.

2.  The applicant started his transition leave on 31 August 1999.  He continued on leave through 31 October 1999.  The applicant's unit extended his separation date by approximately 1 month in order to enable the applicant to complete all medical treatment for his skin cancer.  There is no indication that the applicant returned to duty during the period 1 November to 29 November 1999 

3.  The applicant did not qualify for extension of his separation date or his transition leave.  He was not hospitalized and was not undergoing disability evaluation; he was undergoing outpatient treatment for skin cancer and should have been separated on 31 October 1999 and retired on 1 November 1999.

4.  The Board finds that the applicant's unit was more than fair in its dealings with the applicant, in effect giving him 29 additional days of leave to which he was not entitled.

5.  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

__rvo___  __emw___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042801	
SUFFIX		
RECON		
DATE BOARDED	20000928	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	121.0100	
2.	121.0300	
3.		
4.		
5.		
6.