MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           29 March 2001                  
	DOCKET NUMBER:   AR2000047475

	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. Edmund P. Mercanti		                         Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Lester Echols		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 12.5 days of military leave be restored to him.

APPLICANT STATES:  Medical conditions were diagnosed during his over 40 physical examination in December 1999/January 2000 which prevented him from taking his military leave time.

In support of his application he submits a memorandum from his company commander requesting that his leave be restored.  In that memorandum the commander explains how the applicant had been scheduled for leave three times during the year 2000.  On one occasion he was undergoing medical treatment and could not take the scheduled leave.  On a second occasion he was taking his leave but had to return to a patient status because of complications with his medical condition.  On a third occasion he was on convalescent leave.  The commander chronicles the extensive medical treatment and patient/convalescent leave received by the applicant in the year 2000, and enclosed copies of pertinent medical records.

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

He enlisted in the Regular Army with no prior service on 26 August 1980 and was awarded the military occupational specialty of wheel vehicle repairer.

When the applicant submitted his application he was serving on active duty in pay grade E-7.

USC, Title 10, §701 states that a member may not accumulate more than 60 days of leave a year unless the member could not use his or her leave because of an assignment in support of a contingency operation.

In the processing of this case an advisory opinion was obtained from the Total Army Personnel Command (PERSCOM).  The PERSCOM stated that since the reason for the applicant’s inability to take his leave was not assignment to a hostile fire/imminent danger area or affiliation with a mobilization or contingency operation, he does not meet the statutory and regulatory criteria for carrying over more than the 60 day maximum leave balance.

The applicant was furnished a copy of this advisory opinion and submitted a rebuttal.  In that rebuttal he stated that he understands that there are statutory and regulatory limitations to the amount of leave that can be carried over to successive years.  He is asking for an exception to those statutory and regulatory requirements.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, and advisory opinion, it is concluded:
1.  There is no doubt that the applicant was unable to take his use or lose leave because of medical problems he was experiencing.

2.  However, the Board also notes that the applicant was given a substantial amount of time in a patient status and on convalescent leave during the year 2000.  

3.  The laws and regulations providing soldiers unlimited “sick” leave (when the soldier’s duty status changes from duty to patient or convalescent leave) is fairly unique and very generous.  Unlike most civilian workers in both the Government and private sectors, soldiers have unlimited patient and convalescent leave; they never have to use their accrued leave (vacation time) if their sick leave runs out.

4.  As such, the Board is of the opinion that the applicant was more than adequately taken care of by the Army.  He lost no pay and he went into 2001 with a maximum carryover of leave.

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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000047475	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010329	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.		

On 16 December 1985 the applicant, then a sergeant, was convicted by a special court-martial of two specifications of failing to go to his appointed place of duty, of possession of cocaine in a car, of possession of cocaine in a barracks room, and of breaching the peace by pulling a knife and threatening to cut another soldier.