PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:             10 October 2001
	DOCKET NUMBER:    AR2001058195

	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. Lee Cates		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Charles Gainor		Member	
	Mr. Joe R. Schroeder		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 his records be corrected to allow transfer of his accrued Army leave to his current US Air Force (USAF) service.

3.  The applicant states the Department of Defense (DOD) Financial Management Regulation (FMR), DOD 7000.14-R, volume 7A, Chapter 35, pages 1, 14-15, and table 35-3, makes it clear that his accrued leave must be carried forward and cannot be sold because he did not have a break in service (sic).  He indicates that had he been able to sell his leave as originally indicated on his DD Form 214 (Certificate of Release or Discharge from Active Duty) he could have avoided a substantial debt burden.  He also states he now wants the accrued leave transferred to his new branch of service.

4.  During the period 10 July 1997 through 25 July 2000 (3 years and 16 days), the applicant served in the Regular Army and was honorably separated in pay grade E-5, based on his acceptance of a commission or warrant in another service.  He was authorized 18 days of transition leave and departed Germany on 8 July 2000.  His Separation code is KGN (Accept Commission or Warrant in Another Service).  His DD Form 214 shows he was awarded the Army Achievement Medal (2), the Noncommissioned Officer Professional Development Ribbon, the Army Service Ribbon and the Overseas Service Ribbon.  His DD Form 214 (Item 16) also showed “Days Accrued Leave Paid”, to indicate he was paid for the accrued leave.

5.  On 25 July 2000, a DFAS-DE Form 0-641 (Statement of Military Pay Account) indicated he had 35.5 days of accrued leave.  This form also indicated he was “not authorized to sell leave.  Leave balance should be transferred to new service.”  

6.  On 28 July 2000, the applicant was appointed as a first lieutenant in the USAF Reserve.  He was ordered to extended active duty on 27 August 2000.

7.  On 4 April 2001, Defense Finance and Accounting Service (DFAS), Denver Center advised the applicant that he was indebted in the amount of $2,262.28 and that they were unable to “sell” his accrued leave and that the USAF could not pick up the 36 days accrued leave.  He was provided an application form to request a DD Form 215 (Correction to Certificate of Release or Discharge from Active Duty) changing/correcting his Separation Code from this Board.

8.  This Board operates under the standard of presumption of regularity in governmental affairs.  The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.

9.  The DOD FMR indicates, in pertinent part, that an enlisted member who has been on active duty for 30 or more consecutive days and is discharged for the purpose of accepting a commission in any Uniformed Service and immediately reenters on active duty, is not entitled to payment of accrued leave.  It also shows that upon a break in active service, accrued leave may not be brought forward to a new record of service.

CONCLUSIONS:

1.  The evidence of record shows that the applicant has a break in service from 26 July through 27 August 2000.  Based on the DOD FMR under these circumstances, he was not entitled to have his accrued leave brought forward to his new service.

2.  Under the same authority, accrued leave is not payable because he was discharged for the purpose of accepting the commission.

3.  The Board has determined that no error has been committed, however, to deprive a soldier of an earned entitlement is unjust and his earned accrued leave should be paid to him effective the date of his discharge from the Army (25 July 2000) as an exception to the DOD FMR.  It would be unconscionable to do otherwise.  Payment for his accrued leave was initially indicated on his DD Form 214 upon his discharge, and the break in service clearly precludes carrying the leave forward.

4.  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 by showing the individual concerned is entitled to payment for his earned accrued leave at the time of his discharge (25 July 2000).

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

BOARD VOTE:  

__cg_____ _jrs______ __lls___ GRANT AS STATED IN RECOMMENDATION

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ DENY APPLICATION

		       Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001058195	
SUFFIX		
RECON		
DATE BOARDED	20011010	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	121.00	
2.		
3.		
4.		
5.		
6.