PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 March 2001
	DOCKET NUMBER:   AR2000048106

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	
	Mr. Richard T. Dunbar		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 request, in effect, an exception to the accrued leave policy that would allow him to be paid for the 94.5 days of leave he had accrued prior to his retirement. 

3.  The applicant states, in effect, that he was hospitalized in March 1999 and remained in that status until his medical retirement on 30 November 1999.  He requests he be compensated for the 94.5 days of leave he had accrued but was unable to use because of his medical condition and hospitalization.  He states that he was in fact paid for 60 days of leave in the 1970s, however, while serving on active duty he had a ruptured aorta, which paralyzed his lower extremities and resulted in his being hospitalized for the last nine months of his active duty service.  

4.  The applicant’s military records show that he served on active duty for 
27 years and 6 months and was medically retired in the rank and pay grade of sergeant major/E-9.  

5.  In March 1999, the applicant suffered a ruptured aorta, which caused paralysis in his legs and he remained hospitalized for the remainder of his time on active duty.

6.  In May 1999, the applicant requested that he be paid for his accrued leave on the date of his retirement.  He indicated that he had been paid for 60 days of accrued leave in the 1970s and was aware that it would require an exception to policy for him to be paid for his accrued leave upon retirement.  He indicated that he felt an exception to policy was warranted  because he would be unable to leave the hospital to use the leave prior to his retirement.  

7.  On 18 May 1999, his battalion commander prepared a memorandum supporting the applicant’s request for an exception to policy to pay for his accrued leave.  He commented that under normal circumstances, the applicant would have used his accrued leave as terminal leave in conjunction with his retirement, but his forced hospitalization prevented this.  

8.  The commander further commented that the applicant had given 27 years of faithful service to the United States Army and the funds he would receive for his accrued leave could assist his family in absorbing the cost for some of the life changes they would be required to make as a result of his paralysis.  The record is void of any response to this request for an exception to policy by the applicant.

9.  A Defense Finance and Accounting Service Military Leave and Earnings Statement (LES) pertaining to the applicant and covering the pay period ending on 31 July 1999 shows that as of that date he had 84.5 days of accrued leave, which, based on his earning 2 ½ days of leave per month, would have resulted in his having 94.5 days of accrued leave on his separation date. 

10.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies for the Army leave and pass system.  Paragraph 2-4 contains guidance on the payment for accrued leave.  It states, in pertinent part, that by law payment of accrued leave is limited to 60 days one time during a military career.  It also indicates that the leave program is designed to encourage the use of leave as it accrues rather than to accumulate a large leave balance and that soldiers who build their leave balance to the maximum level risk losing their leave should a situation occur that prevents or delays leave use.  It does allow for special leave accrual but only to provide relief to soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility.  

CONCLUSIONS:

1.  In accordance with applicable law and regulations, a soldier may be paid for only 60 days of accrued leave during a military career.  In this case, the applicant had previously been paid for 60 days of accrued leave and was not eligible to receive pay for his accrued leave on the date of his separation for retirement. 

2.  Although the regulation warns against accruing leave that may be lost in unforeseen situations, the Board finds it was not unreasonable for the applicant to accrue this leave with the expectation that he could use it as terminal leave in conjunction with his retirement.

3.  Given the extraordinary circumstances of this case, the Board concludes that it would be unjust to allow the applicant’s hospitalization and paralysis to serve as a basis for denying him the earned benefit of his accrued leave.

4.  Further, in the interest of justice, equity, and compassion, the Board finds that it would be appropriate to pay the applicant for the 94.5 days of leave he had accrued, in excess of the 60 days allowed by law and regulation, as an exception to policy.  

5.  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 paying the individual concerned for the 94.5 days of leave he had accrued as of the date of his separation, in excess of the 60 days allowed by law and regulation, as an exception to policy.  

BOARD VOTE:  

__tos____  ___ew___  ___rtd __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Ernest M. Willcher_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000048106	
SUFFIX		
RECON		
DATE BOARDED	2001/03/15	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1999/11/30	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Disability Retirement	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  252	121.0000	
2.		
3.		
4.		
5.		
6.