PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            5 May 1999                  
	DOCKET NUMBER:   AC98-12909
				   AR1999015778

	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. Loren G. Harrell		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger W. Able		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 the number of days leave balance on October 1998 Leave and Earnings Statement be changed to 91.5 days.

3.  The applicant states that he was not allowed to take leave from July 1997 to October 1998 because of Medical Board processing.  He was informed by the PEBLO (Physical Evaluation Board Liaison Officer) that at the completion of the board proceedings he would have all his leave.  He received the PEB (Physical Evaluation Board) final disposition in October 1998 at which time he started retirement procedures.  When he received the October LES, it showed that 
29 days were taken from him as lost leave.  He provided with his application the following: memoranda from the Medical Board PEBLO stating that the applicant would not be placed on leave or any type order that would interfere with completion of the medical evaluation; a 1 October 1998 memorandum from the Physical Disability Branch concluding the PEB and announcing its final decision; a DA Form 3947, Medical Evaluation Board Proceedings, showing its initiation date as 17 July 1998 and the board's recommendation on 24 August 1998; and a September 1998 and October 1998 LES showing the loss of 29 days leave.

4.  An advisory opinion on the case was obtained from the Personnel Service Branch of the Army Personnel Command.  The opinion recommended disapproval of the applicant's request to restore his lost leave stating that the applicant was not in a hostile fire/imminent danger area or affiliated with a mobilization or contingency operation and prevented from using accrued leave which status would allow him to retain lost leave up to 90 days maximum.  The advisory opinion was forwarded to the applicant for comment on 10 February 1999.  No response has been received from applicant as of 3 May 1999.

5.  The applicant’s military records show that he is a Staff Sergeant E-6 who at the time of his application on 9 November 1998 had 20 years 3 months 22 days time in the Regular Army.  Medical Board action was begun for the applicant in May 1998 for an arterial/venous condition in his cranium related to a post-cranial operation.  The Medical Evaluation Board proceeding and final determination of the applicant’s fitness for duty was not competed until 1 October 1998.  During this time, May to October, the applicant was not allowed to take leave.  Consequently, on 1 October 1998, he lost 29 days leave, the number of days of leave in excess of the 60 days leave he is allowed to carry forward into a new fiscal year.

CONCLUSIONS:

1.  The applicant lost 29 days leave due to no fault of his own as a result of being restricted from taking leave from May to 1 October 1998 while he was undergoing Medical Evaluation Board proceedings and a PEB review and final determination.  As a matter of fairness and justice, the lost 29 days should be restored to the applicant.  The question of hostile fire/imminent danger area or affiliated with a mobilization or contingency operation does not apply in this case.

2.  No evidence is found to justify restoration to 91.5 days leave as only 29 days were shown as lost on the applicant's LES.

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 by restoring to the individual concerned 29 days leave lost on 
1 October 1998 for use during Fiscal Year 1999 or to be paid if the individual has retired.

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

BOARD VOTE:  

_JMA___  _JS  ____  _RWA___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_James M. Alward______
		        CHAIRPERSON

INDEX

CASE ID	AC98-12909/AR1999015778	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990505	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.