PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           22 February 2001                  
	DOCKET NUMBER:   AR2000047487

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

	Mr. Carl W. S. Chun		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Ted S. Kanamine		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the entire period of his leave from 22 November 1999 to 29 February 2000 be considered terminal or transition leave to meet the requirements of 5 US Code (USC) 5534a.

3.  The applicant states that on 22 November 1999, the Library of Congress (LoC) hired him.  During the period 22 November 1999 to 29 February 2000 he was in a terminal status from the Army and used a combination of leave, pass, Permissive Temporary Duty (PTDY) and time off to work at the LoC while waiting for retirement on 1 March.  He contends that the LoC knew that he was not retired when he started working there and they were also not aware of the dual employment law, in 5 USC 5534a, that required him to be on terminal leave from the Army.  He claims that he was not aware of the dual employment law either.  When the LoC became aware of the law, and determined that he was not in a terminal leave status, his hiring was invalidated and termination action was begun.  He says that the LoC decision insinuates that he lied, intentionally deceived and refused to cooperate in establishing his status, none of which is true.  The applicant further states that he waives any entitlement to increased pay that might result if his record is corrected as he requests. 

4.  Counsel contends that the applicant has suffered a serious injustice and his status as a civil servant of the LoC is threatened and jeopardized as a result of an innocent error.  The applicant seeks no monetary benefit only a correction of records to show that he was not involved in misconduct or misrepresentation.  He asks that the applicant’s military records be corrected to place him in a status that leaves no question as to his eligibility to report to the LoC on 22 November 1999.

5.  The applicant’s military records show that he graduated from the United States Military Academy and immediately entered active duty.  He rose to the grade of lieutenant colonel and voluntarily retired with over 21 years of service for retirement purposes.

6.  The applicant requested voluntary retirement on 15 September 1999 to be effective 29 February 2000.  The request was approved and he was placed on the retired list 1 March 2000.

7.  The record shows that between 22 November 1999 and 1 March 2000 the applicant used a combination of authorized absence, leave, pass, and PTDY to cover his absence from his military duties.  All of the absences were with the approval of his supervisors.

8.  The Department of Defense Inspector General (IG) conducted an investigation into a question from the LoC as to the type of leave the applicant was on during the period 22 November 1999 to 1 March 2000.  The IG determined that while not all of the applicant’s absences during the period were consistent with current Army policy, particularly as it pertained to the use of PTDY during transition to retirement, no intent to defraud the US Government was found and no action against the applicant was warranted.

9.  As a result of the IG’s investigation the Office of the Deputy Chief of Staff for Personnel (ODCSPER) took action to clarify and publish revised instructions on the use of PTDY in retirement circumstances.  The ODCSPER also requested the Defense Finance and Accounting Service (DFAS) audit the applicant’s records to determine if any pay adjustments should be initiated.

10.  Army Regulation 600-8-10, Leaves and Passes, prescribes the policies, operating tasks and steps governing military personnel absences including the use of leaves, passes and PTDY. 

11.  Army Regulation 600-8-24, Officer Transfers and Discharges, chapter 6, provides instructions for the nondisability retirement of commissioned and warrant officers on active duty who have 20 or more years of active federal service.  

12.  5 USC § 5534a, provides that a member of a uniformed service who has performed active service and who is on terminal leave pending separation from, or release from active duty in, that service under honorable conditions may accept a civilian office or position in the Government of the United States, its territories or possessions, or the government of the District of Columbia, and he is entitled to receive the pay of that office or position in addition to pay and allowances from the uniformed service for the unexpired portion of the terminal leave.  (Current Army regulations refer to terminal leave as transition leave).

CONCLUSIONS:

1.  The applicant says that when he was offered the job at the LoC he hurriedly submitted his retirement application and was not aware of the prohibition against dual federal employment for members of the uniformed services while in any status other than terminal leave.  The Army regulations pertaining to officer retirements and leaves and passes make no mention of the proscriptions cited in 5 USC regarding dual federal employment.

2.  An investigation found no evidence to suggest that the applicant attempted through deceit, misrepresentation or collusion to defraud the US Government.  It did determine that between 22 November 1999 and 1 March 2000, he apparently used PTDY in a manner that was not in keeping with Army policy; however, the investigation also found that since the use of PTDY during retirement transition had become institutionalized throughout the Army, the PTDY he had used should be authorized.  No recommendation for disciplinary action was made. 

3.  In the absence of any finding of willful misconduct in this matter, the Board believes that the applicant made an honest error and was not aware of the restrictions in 5 USC §5534a when he accepted employment at the LoC.  It would, therefore, be appropriate to correct his record to show that his absence between 22 November 1999 and 29 February 2000 was in an authorized terminal (or transition) leave status.  Concurrent with this determination, the DFAS should audit his account to determine if any pay adjustments in the Government’s favor are appropriate.  DFAS is advised that no additional payment should be made to the applicant as a result of this correction.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

	a.  showing that the individual concerned was in a terminal (or transition) leave status during the period 22 November 1999 to 29 February 2000; and 

	b.  retroactively adjusting his final pay as appropriate and ensuring that no additional payment is made to the applicant as a result of this correction.

BOARD VOTE:  

__rco ___  ___sk___  ___tsk __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________Raymond V. O'Connor, Jr.____
		        CHAIRPERSON

INDEX

CASE ID	AR2000047487	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000222	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  121.00		
2.		
3.		
4.		
5.		
6.