MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 November 2000
	DOCKET NUMBER:   AR2000049456

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John N. Kern		Member	
	Mr. Wilfred A. Hale, Jr.		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, payment for 44.5 days of accrued leave or an extension of her separation date to allow her to take additional terminal leave.

APPLICANT STATES:  In effect, that she was unable to sell her accrued leave or to use it because of a late approval for her release from active duty.  She further states that she was initially notified that she was nonselected for promotion to major in July and was scheduled for separation on 1 December.  She initially elected to separate by the 1 December date and subsequently requested on 24 August to separate on 1 October.  However, her paperwork was delayed and by the time she received her orders, the 1 October date had passed.  She goes on to state that when she began her out-processing with finance personnel she was informed that because she had previously sold 58 days of leave she would not be able to cash in her leave.  She continues by stating that she should be either granted an exception to cash in her leave or to have her separation date extended so that she can take it as terminal leave.

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

She initially enlisted on 16 August 1984 and served until she was honorably released from active duty (REFRAD) on 20 August 1987, under the provisions of Army Regulation 635-200, chapter 16, to enter the Reserve Officer Training Corps (ROTC).  She was transferred to the United States Army Reserve (USAR)
Control Group (ROTC) and was paid for 58 days of accrued leave.

She was commissioned as a USAR second lieutenant and was ordered to active duty on 24 May 1989.  She was promoted to the rank of captain on 1 June 1993.

On 31 May 2000, the Total Army Personnel Command (PERSCOM) issued a memorandum notifying the applicant that she had been twice nonselected for promotion to the rank of major by a Department of the Army Major Army Medical Department (AMEDD) Promotion Selection Board and that she must be discharged no later than 1 December 2000.  She acknowledged receipt of the notification and elected to separate on 1 December 2000.

On 29 August 2000, the applicant submitted a request to have her separation date changed to 1 October 2000.  Although the available records do not show the final outcome of this request, there is information provided by the applicant which shows that the applicant requested a Reserve commission in connection with her separation and on 13 October 2000, the PERSCOM Officer Separation Branch dispatched a message authorizing the applicant’s separation no later than 23 November 2000. 

For reasons unexplained in the available records, the applicant’s orders were subsequently amended on 19 October 2000 to show that she would be separated on 1 December 2000, as originally scheduled.
On 18 October 2000 the applicant requested that she be granted 30 days of terminal leave.  She indicated that she had 46.5 days of accrued leave.

The report of separation (DD Form 214) prepared for the applicant’s separation on 1 December 2000 indicates that she was paid for 2 days of accrued leave, that she will have served 14 years, 5 months and 18 days of total active service, and that she received $71,606.43 in separation pay.  She was transferred to the USAR Control Group (Reinforcement).

Army Regulation 630-5 serves as the authority for leaves and passes.  It states, in pertinent part, that Congress has provided compensation (no more than 60 days in a military career) for soldiers who were not able to use their leave because military requirements prevented it.  Soldiers will not be required to use leave immediately prior to separation simply for the purposes of reducing leave balances.  On the other hand, use of leave as an extra money program defeats the intent of Congress to provide for the health and welfare of soldiers.  It should not be used either as a method of compensation or as a career continuation incentive.  It is specifically intended that large leave balances will not be accrued expressly for settlement upon release from active duty.  Additionally, leave will not be granted that will interfere with timely processing or transition.

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 authorized to be paid for more than 2 days of accrued leave at the time of her separation because she has previously cashed in 58 days of accrued leave towards her maximum entitlement of 60 days.

2.  While it is unfortunate that the applicant may lose some of her accrued leave at the time of her separation, she has failed to show through the evidence submitted with her application or the evidence of record that she was unjustly denied the opportunity to take ordinary or terminal leave at some time prior to her scheduled separation date.  It simply appears that she waited too late to take her leave before she found out that she could not cash it in.

3.  Although it is not the intent of the Government that soldiers lose their accrued leave, soldiers are routinely denied transition leave due to mission essential needs.  There are no guarantees that transition leave will always be approved or that circumstances will change that prevent one from taking transition leave, which is an inherent risk in accumulating large sums of leave for such purposes.

4.  Notwithstanding the foregoing conclusions, there are no provisions in the applicable law that allow for payment to the applicant for leave lost.

5.  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.

6.  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

___jhk___  ___mkp _  __wh____  DENY APPLICATION

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

INDEX

CASE ID	AR2000049456	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/28	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  254	121.0200/LV PAY	
2.		
3.		
4.		
5.		
6.