MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            2 July 2002
	DOCKET NUMBER:   AR2002070671

	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. Karol A. Kennedy		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Raymond J. Wagner		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, that he be paid for the 70 days of leave he lost at the time of retirement.

APPLICANT STATES:  In effect, that he was authorized to take terminal leave in conjunction with his retirement; however, the commanding general deemed his position as mission essential due to Operation Desert Storm and he was denied the opportunity to take the leave or to be paid for it.

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

He enlisted on 12 January 1972 and remained on active duty through a series of continuous reenlistments.  His records also show that he cashed in 60 days of accrued leave on 3 September 1979, when he reenlisted.  He was promoted to the pay grade of E-7 on 12 December 1982.

On 16 July 1991, orders were published by the Personnel Service Center (PSC) in Wurzburg, Germany, reassigning him to the Army Transition Point at Fort McPherson, Georgia, effective 1 December 1991.  The orders authorized him 60 days of transition leave and authorized him to retire by reason of length of service on 31 January 1992. 

Meanwhile, on 22 August 1991, the applicant submitted a request for overseas separation in Germany.  His request was approved and his orders reassigning him to Fort McPherson were revoked on 1 October 1991.

On 4 December 1991, orders were again published by the PSC reassigning him to the United States Army Reserve (USAR) Control Group (Retired) effective 31 January 1992.  His orders also authorized 60 days of transition leave.

On 31 January 1992, the applicant was honorably released from active duty in Wurzburg, Germany, under the provisions of Army Regulation 635-200, chapter 12, for retirement based on length of service.  He had served 20 years and 19 days of total active service and was placed on the Retired List effective 1 February 1992.  

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 purpose 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.

Department of Defense (DOD) Financial Management Regulation (Also known as the DOD Pay Manual) provides, in pertinent part, that beginning on 10 February 1976, a military member may not be paid for more than 60 days of accrued leave during a career.  An exception to that provision was approved effective 2 August 1990, which allowed Reserve and Retired Component members who were called to active duty during the Persian Gulf Conflict to be paid for accrued leave over the 60-day limit. 

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 was not authorized to be paid for his accrued leave at the time of his separation because he had previously cashed in his maximum entitlement of 60 days.

2.  While it is unfortunate that the applicant may have lost some of his accrued leave at the time of his separation, he has failed to show through the evidence submitted with his application or the evidence of record that he was unjustly denied the opportunity to take ordinary or terminal leave at some time prior to his scheduled separation date, or that he attempted to change the date of his retirement in order to avoid the loss of his leave.  

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.  The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record.  He has provided no evidence to show how much leave he lost or the circumstances surrounding its loss.  Based on the evidence of record, he retired as originally scheduled.

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

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

___kak __  __ao____  ___rjw __  DENY APPLICATION

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

INDEX

CASE ID	AR2002070671	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/02	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  255	121.0300/RESTORE LEAVE	
2.		
3.		
4.		
5.		
6.