PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  10 October 2001
	DOCKET NUMBER:  AR2001052233

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Joe R. Schroeder		Member	
	Mr. Charles Gainor		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, in effect, that his leave be restored to him for the period 16 February 1993 through 30 September 1998 and that he be allowed special leave accrual.

3.  The applicant states, in effect, that he was confined by a general court-martial order from 16 February 1993 through 12 October 1997.  He was released from parole when the court-martial sentence was reduced to 1 year confinement.  He voluntarily retired on 30 September 1998 but all of his leave was not restored to him.  He requested special leave accrual for this leave through Fort Leavenworth on 17 July 1998 but he never received the leave.

4.  The applicant’s military records show that he was an Active Guard Reserve (AGR) major when he was sentenced on 16 February 1992 by a general court-martial at Fort Clayton, Panama, to confinement for 6 years, according to Headquarters, United States Army South, General Court-Martial Order 
Number 8, dated 19 May 1992.  He was confined at Fort Leavenworth.  On 
30 September 1994, he was released from confinement and placed on parole.  On 16 December 1996, the United States Court of Appeals for the Armed Forces set aside the findings of guilt on a charge of the court-martial, called the additional charge, and returned the remaining charges to the Fort Leavenworth general court-martial convening authority for resentencing based on the remaining charges.  The applicant was recalled from parole to active duty at Fort Leavenworth, effective 27 October 1997, for rehearing of his case, according to Fort Leavenworth Orders 083-01, dated 23 October 1997.  On 5 December 1997, the Fort Leavenworth general court-martial adjudged a new reduced sentence of 1 year confinement and a reprimand, according to Fort Leavenworth General Court-Martial Order Number 4, dated 30 April 1998.  He retired from the service on 30 September 1998.

5. On 16 July 1998, by a DA Form 4187 (Personnel Action), the applicant had requested special leave accrual for the period of restored active duty.  His commander approved the request on 17 July 1998.  According to military pay and leave records, the applicant took 132 days of leave between 19 December 1997, and his retirement date, 30 September 1998.  He was credited with 
74 days accrued leave consisting of 46 days accrued prior to 30 September 1997 and 28 days for the period of 1 October 1997 through 30 September 1998.  He was charged monetarily for 63 days excess leave for the periods of 3-12 July 1998 and 9 August 1998 through 30 September 1998.

6.  Army Regulation 600-8-10 (Leaves and Passes), specifies that soldiers on active duty earn 30 days of leave a year with pay and allowances at the rate of 
2 ½ days a month.  This entitlement excludes periods of Absent Without Leave 

(AWOL), unless excused as unavoidable; confinement resulting from a court-martial sentence; confinement for more than 1 day while awaiting court-martial provided soldier is convicted; excess leave; unauthorized absence because of detention by civil authorities; absence in custody of civil authorities under provisions of Article 14, Uniformed Code of Military Justice (UCMJ) provided soldier is not entitled to receive pay and allowances; and absence over 1 duty day due to use of drugs or alcohol or because of disease or injury resulting from soldier's misconduct.  Soldiers may accrue and carry forward up to 60 days leave at the end of each fiscal year.  Accrued leave that exceeds 60 days at the end of the fiscal year is lost except as authorized for special leave accrual up to 90 days to provide relief to soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility.  Special accrual only applies in cases of deployment or during periods of hostility.

CONCLUSIONS:

1.  The applicant’s reduced confinement for 1 year would have been for the period 16 February 1992 through 15 February 1993.  All time from 16 February 1993 through his retirement date, 30 September 1998, is good time and he should be provided full leave authorization and, as an exception, allowed accrual of all leave for the entire period, approximately 168 days.  It appears that he was credited with approximately only 74 days accrued leave and charged 63 days excess leave for the entire period.

2.  There is no evidence that, although his commander approved a request for special leave accrual, that such was actually granted or that leave in excess of the normal accrued 60 days leave plus leave authorized during his last year of active duty were credited to him.  Granting of special accrual of leave in excess of 60 days only applies in cases of deployment or during periods of hostility.  Exception is required to grant leave accrual in excess of 60 days in the applicant’s case.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected for the individual concerned by:

	a.  providing him full leave authorization for the period 16 February 1993 through 30 September 1998, less regular leave already granted and used; and

b.  providing him with commensurate pay for the accrued leave balance.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__ls___  __js___  __cg____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Luther L. Santiful____
		        CHAIRPERSON

INDEX

CASE ID	AR2001052233	
SUFFIX		
RECON		
DATE BOARDED	20011010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PART	
REVIEW AUTHORITY		
ISSUES         1.	121 – Leave Adjustment	
2.		
3.		
4.		
5.		
6.