BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150008457 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ _x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150008457 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x_______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150008457 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests compensation for 60.5 days of ordinary leave from 2011 and 2012. He also requests a personal appearance before the Board. 2. The applicant states he was required/forced, due to the improper acts committed by numerous personnel within and outside his chain of command, to use ordinary leave instead of being placed in an authorized convalescent leave status. 3. In a 12-page, self-authored letter, the applicant further elaborates: a. He was serving as a major (MAJ) in the Active Guard/Reserve (AGR) Program of the California Army National Guard (CAARNG), assigned to Camp Roberts, California from May 2010 to August 2012. While on annual leave at his home on 4 July 2011, he suffered a left calcaneal (heel) fracture in an accidental fall. A civilian doctor performed surgery to repair the fracture on 15 July 2011, and he was placed in a soft cast and began a period of convalescent leave. b. Following his surgery, his doctor instructed him not to perform military duties for at least 6 weeks, which was extended during subsequent examinations and evaluations to on or about 1 November 2011. c. He states he was required/forced to use ordinary leave and was subjected to improper acts to force him to return to duty prematurely. Also, the deliberate delay/non-action in processing an extended convalescent leave request, which was denied, was without basis in fact. d. He has exhausted all administrative remedies with the California Military Department and the National Guard Bureau (NGB) without a reasonable resolution. Therefore, he requests the Army Board for Correction of Military Records (ABCMR) review the numerous instances of improper actions by officers and organizations that occurred from the date of his injury until his separation/retirement from military service. e. On 31 August 2011, he began to receive numerous phone calls and e-mail messages from his chain of command concerning his convalescent leave status and his supposed responsibility to schedule an appointment with a medical treatment facility (MTF). He believes this is contrary to policy, as a TRICARE Prime Remote enrollee, and he was not authorized to schedule his own appointments with the Los Angeles Air Force Base Medical Clinic. f. At a follow-up examination on 9 September 2011, his civilian doctor stated his proposed return to duty date and he was instructed not to drive, to have his foot evaluated, not to use stairs, and to use crutches. g. His chain of command was aware that the authorized convalescent leave maximum (30 days) was exhausted and that the MTF Commander was the only authority authorized to grant extended convalescence leave. He states the garrison commander understood the request for the continuance of convalescent leave based on his civilian doctor's documentation. However, he thought he was being threatened with an absent without leave status unless he received an MTF evaluation/appointment for his injury. h. On 14 September 2011, he began receiving almost daily phone calls from his chain of command inquiring on the status of his appointment to see a physician at an MTF. His supervisor contacted the officer-in-charge (OIC) of the medical clinic and scheduled him an appointment on 29 September 2011. i. On 29 September 2011, he was eventually seen by a military doctor from the Los Angeles Air Force Base Medical Clinic (the closest MTF), who he thought agreed with his civilian doctor's medical diagnosis and recommendation on when he should return to duty. j. On 30 September 2011, he spoke to his supervisor, who informed him that the MTF cleared him to return to duty with limitations and desk duty and to report on 3 October 2011. He was further instructed that he could use annual leave if he felt he was not physically able to return to work. k. On 3 October 2011, he received a memorandum from the MTF stating he had no physical limitations to prevent him from attending work during regular duty hours within the limits of the instructions he received. He was approved for 9 days of annual leave to continue to heal. l. He believes his supervisor acted improperly with the OIC of the MTF and that the OIC directed undue influence on his military medical doctor to render a different outcome than the one he thought he was given. m. During this same time he was being processed through the Integrated Disability Evaluation System (IDES) for a condition other than his healed fracture. n. On 14 May 2012, the Director, Personnel and Community Activities at Camp Roberts, submitted an extended convalescent leave request to the NGB. This action was disapproved and hampered his ability to utilize any transition leave. o. On 3 July 2012, he submitted an appeal to the Deputy State Surgeon of the CAARNG. On 5 July 2012, his appeal was disapproved. He finds it appalling and inconceivable a decision was rendered so quickly. He believes it justifies his belief it was a predetermined outcome. p. On 6 July 2012, during his initial closeout event-oriented counseling with the Garrison Commander, he expressed his surprise, frustration and displeasure concerning her actions and rationale in recommending non-concurrence with the extended convalescent leave. He states she turned to him and stated "[Applicant], the reason I recommended non-concurrence, was that you didn't follow procedures, you didn't do enough to schedule your appointment and you were abusing the system." In complete disbelief, he remained silent. q. On 7 July 2012, during a phone conversation with the Deputy State Surgeon, he inquired about the nature of the comments the Garrison Commander used for her recommended non-concurrence with the extended convalescent leave and NGB's initial disapproval and appeal disapproval. She informed him that she, the Garrison Commander, and the NGB – Office of the Chief Surgeon had a conference call to coordinate and jointly discuss the rationale and language for the recommended non-concurrence that would justify the subsequent denial of the extended convalescent leave. r. It is unclear to him how or why the NGB inserted itself into the approval/ decision making process of his convalescent leave request, as it should have remained with the MTF. s. He believes the incidents that took place were improper and were manipulated by his chain of command to negatively impact his ability to use authorized annual (transition) leave. 4. The applicant provides numerous documents, tabbed and organized as follows: * Enclosure 1 - DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 August 2012 * Enclosure 2 - five pages of medical documents referring to his injury and return to work status * Enclosure 3 - six pages of emails between himself and his chain of command, dated between 31 August 2011 and 12 September 2011 * Enclosure 4 - two pages of emails between himself and the Physical Evaluation Board Liaison Officer (PEBLO), from 22 - 27 September 2011 * Enclosure 5 - CAARNG Form 40-6-2 (Physician's Report and/or Disability Certification), dated 29 September 2011 * Enclosure 6 - a memorandum from the Staff Physician of the 61st Medical Squadron, Los Angeles Air Force Base, to his chain of command concerning his status, dated 3 October 2011, w/ fax sheet * Enclosure 7 - DA Form 199 (Physical Evaluation Board (PEB) Proceedings), labeled "Informal Reconsideration" and dated 2 April 2012 * Enclosure 8 - two pages of emails from the Director , Personnel and Community Activities to the applicant on 14 May 2012 * Enclosure 9 - DA Form 31 (Request and Authority for Leave), dated 15 May 2012, and a memorandum from the Garrison Commander, Camp Roberts, CA, dated 16 May 2012, subject: Request for Convalescent leave in Excess of 30 Days for (Applicant) * Enclosure 10 - various documents concerning his retirement and promotion to lieutenant colonel (LTC) * Enclosure 11 - an email between himself and the garrison commander concerning the denial of his convalescent leave on 29 June 2012 * Enclosure 12 - a memorandum from NGB, dated 25 June 2012, disapproving his convalescent leave request, and his memorandum requesting appeal of his convalescent leave denial, dated 3 July 2012 * Enclosure 13 - a memorandum from the NGB disapproving his appeal request for convalescent leave, dated 5 July 2012 * Enclosure 14 - an extract page from Army Regulation 600-8-10 (Leaves and Passes), concerning convalescent leave rules * Enclosure 15 - two pages of emails from himself and his chain of command concerning a military medical appointment from 1-9 September 2011 * Enclosure 16 - two letters from the NGB to the applicant's Member of Congress, dated 21 May 2013 and 6 December 2013, respectively * Enclosure 17 - one letter from the NGB to the applicant's Member of Congress, dated 21 March 2013 * Enclosure 18 - DA Form 4856 (Developmental Counseling Form), dated 19 July 2012, between the applicant and the garrison commander concerning his duties and commander's inquiry on his leave status; a final pay worksheet * Enclosure 19 - a letter from the Office of The Adjutant General, CAARNG to the applicant's Member of Congress, dated 15 May 2013 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Following prior enlisted service in the ARNG, the applicant was appointed as a commissioned officer in the ARNG on 22 March 1987. 3. The applicant entered a period of continuous active duty on 31 May 1995, as a member of the AGR Program of the CAARNG. He was assigned to Headquarters and Headquarters Battery, 1st Battalion, 143rd Field Artillery Regiment, Walnut Creek, California. After serving in various positions and duty stations, he was promoted to MAJ on 22 May 2001. 4. The applicant entered into the IDES via his referral to a medical evaluation board (MEB) on 18 May 2011. His referral was based on his diagnoses of spondylosis and degenerative disk disease of the cervical spine and degenerative disk disease, lumbar spine. 5. He suffered a left calcaneal (heel) fracture in an accidental fall on 4 July 2011, during a period of annual leave. He underwent surgery to repair the fracture on 15 July 2011 and was placed in a soft cast. 6. The applicant provides three documents titled "Return to Work/School Order - Work/School Status" from his civilian doctor, which outlines three appointments: a. On 8 July 2011, he was diagnosed with a fracture and his status was listed as temporarily totally disabled for 6 weeks. b. On 15 August 2011, he was further evaluated and given instructions not to drive. Again, his status was listed as temporarily disabled for another 6 weeks. c. On 21 September 2011, he was further evaluated and given instructions not to drive. Again, his status was temporarily totally disabled for 6 weeks around 1 October 2011. 7. He provides a CAARNG Form 40-6-2 (Physician's Report and/or Disability Certification), dated 9 September 2011, from his civilian doctor, which notes the following information: a. His examinations, to date, occurred on 7 July, 15 July, and 15 August 2011. He was not able to perform his military or civilian duties, his condition was not permanent, and he would not be referred to an MEB. b. His diagnosis was a left foot calcaneal fracture on 4 July 2011, as a result of an accidental fall from the roof of his house. During surgery on 15 July 2011, the fracture was repaired and he continued to make satisfactory progress while healing, adhering to the treatment program that was outlined for him. c. His prognosis was that he was expected to make a full and complete recovery, as long as he was allowed to follow the treatment program that was outlined for him. Any deviation interference, or delay to that program would prolong the healing process, thus delaying his return to a duty status. d. His current treatment plan was to remain completely non-weight bearing on his left foot, use crutches at all time, no driving, continuous elevation of the foot, no use of stairs, potential bone stimulation, pneumatic boot, and physical therapy. This treatment plan would take approximately 4-6 weeks. He should be able to return to normal duties on 1 November 2011. 8. He provides an email from his supervisor, dated 8 September 2011, that stated he had exhausted his maximum of 45 days of authorized convalescent leave. It further inquired when he was going to be seen by an MTF physician, as the MTF Commander was the one to grant/authorize him continued convalescent leave. 9. He provides a CAARNG Form 40-6-2, dated 29 September 2011, from a military medical doctor at the 61st Medical Squadron, Los Angeles Air Force Base. The contents of this form are identical to the CAARNG Form 40-6-2, dated 9 September 2011 and completed by his civilian doctor, with the exception that it noted the attending surgeon stated a return to duties would be 8 November 2011. 10. He provides a memorandum from the military medical doctor, dated 3 October 2011, that opines the following: [Applicant] sustained a fracture of his left calcaneus (heel) on 4 July 2011, for which he underwent surgery on 15 July 2011. He was seen at Los Angeles AFB Primary Care Clinic on 29 September 2011, at which time his detailed surgeon's notes were reviewed. His surgeon has assigned the patient to a specific physical therapy and rehabilitation plan that includes elevating the foot during the day. He wears a cast on left lower extremity, below the knee. He ambulates with the assistance of crutches. Although he will be unable to participate in regular physical fitness requirements for an as yet undetermined length of time, he currently has no physical limitation to prevent him from attending work during regular duty hours. His leg should remain elevated, however, and he must be allowed to remain seated during the majority of the duty day. He should be allowed to attend his physical therapy sessions. This has been explained to the military member, who verbalized understanding. 11. He provides his DA Form 31, dated 15 May 2012, which shows in: * Block 7 (Type of Leave), "Convalescent Leave" * Block 10 (Dates From / To), "6 July 2011 / 3 October 2011" * Block 12 (Supervisor Recommendation/Signature), the disapproval box is checked * Block 17 (Remarks), "Medical documentation does not support remaining in quarters, light duty was available. SM's duty is primarily sedentary at desk. As soon as military physician was consulted, he approved return to duty." It further stated that chargeable leave was from 17 August 2011 to 3 October 2011. 12. He provides a memorandum from the Garrison Commander, Camp Roberts to the Deputy State Surgeon, dated 16 May 2012, that accompanied the DA Form 31. It stated the commander did not concur with the approval of the convalescent leave from 6 July 2011 to 3 October 2011, with the same reasoning as outlined in the remarks block of the DA Form 31. 13. He provides two memoranda from the NGB Chief Surgeon. The first disapproved his convalescent leave request on 25 June 2012, based on the rationale that his command had stated that light duty was available and that he could have been accommodated with desk duty. The second disapproved his appeal request on 5 July 2012, based on the fact that no submitted medical evidence met the requirements necessary for convalescent leave. 14. He provides a DA Form 4856, dated 19 July 2012, wherein the Garrison Commander provided an event-oriented counseling to address his leave status and his final responsibilities before he transitioned out of the service. 15. By informal PEBs convened on 12 January 2012 and 2 April 2012, the board found his diagnoses of spondylosis and degenerative disk disease of the cervical spine and degenerative disk disease, lumbar spine prevented him from performing the duties required of his grade and specialty and found him physically unfit for further service. a. The PEB rated his condition under the VA Schedule of Rating Disabilities codes 5243-5239, with a 40 percent disability rating. The PEB recommended that he be separated with a permanent disability retirement. He concurred with the findings and recommendations and waived a formal hearing of his case on 11 May 2012. b. The PEB's findings and recommendation were approved by the U.S. Army Physical Disability Agency on 25 May 2012. 16. His DD Form 214 shows he was retired on 23 August 2012, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, permanent (enhanced). Item 16 (Days Accrued Leave Paid) of his DD Form 214 shows the entry "0." 17. An advisory opinion was obtained on or about 27 October 2015 from the Deputy State Surgeon, Headquarters, CAARNG, Sacramento, California. This official opined the following: a. The review was conducted by documents from the applicant's records, and the applicant is requesting reimbursement for annual leave charged in lieu of convalescent leave for the periods of 6 July 2011 to 3 November 2011. b. On 16 May 2012, the State Surgeon's Office received a convalescent leave request packet from the Garrison Commander of Camp Roberts Maneuver Training Center, on the applicant's behalf. This packet included the Commander's non-concurrence memorandum for the convalescent leave he was requesting. The packet included 74 pages of medical documents and a DA Form 31 signed by the Commander and the applicant on 15 May 2012. c. According to NGB policy, the Office of the Chief Surgeon, Army National Guard (ARNG-CSG), is the approval authority for convalescent leave requests in excess of 30 days for all Title 32 AGR Soldiers. A convalescent leave status is intended to represent a period wherein a Soldier is deemed unable to perform any military duties (to include clerical office duties as well as military field duty), either at their regular place of duty or at home. The CAARNG State Surgeon's Office is responsible for submitting the convalescent leave request form via the Medical Action Tracking System (MATS) to the Medial Standards Officer at ARNG-CSG for review and approval. The applicant's convalescent leave request was loaded in MATS on 22 June 2012. Documents for review included all the administrative and medical documents provided on 16 May 2012, permanent profile and additional medical documents received from the applicant on 22 June 2012. d. On 25 June 2012, the NGB Chief Surgeon's Office loaded their response memorandum declining his request for convalescent leave, stating "Convalescent leave from 2011 is not approved. Command has stated that light duty was available and that the Soldier could have been accommodated with desk duty." This information was sent to the Commander and AGR Branch Chief for their records. The Commander was informed that if the applicant wished to appeal the decision, he would need to send that information within 30 days to the Deputy Surgeon to load in MATS. e. On 3 July 2012, the applicant submitted his request for appeal after a brief discussion with the Deputy Surgeon regarding the type of supporting documents needed. On 4 July 2012, he submitted a new memorandum and supporting medical documents. This information was loaded in MATS on 4 July 2012 for review and approval. f. On 5 July 2015, the NGB Chief Surgeon's Office loaded their appeal response memorandum declining his request for appeal; stating "Convalescent leave request/appeal is denied based on the fact that there is no submitted medical evidence that meets the requirement necessary for convalescent leave." As opposed to the statements on the ABCMR application, I, as Deputy Surgeon, have never coordinated a conference call with a Commander with the Chief Surgeon's Office or Medical Review Officer to address specific medical documents. In this case, all medical documents submitted prior and for the appeal were considered in his request; however, the Chief Surgeon's Office felt that this officer was afforded the opportunity to perform light duty and was even given the option to telecommute. Based on this, his request was denied. 19. The applicant was provided a copy of the advisory opinion and responded on or about 11 March 2016. He provided the following in response: * a four-page self-authored statement * DA Form 3349 (Physical Profile), dated 18 September 2009 * Standard Form 600 (Chronological Record of Medical Care), undated * two pages of emails between him and the Garrison Commander, dated from 15 August 2011 to 24 August 2011 * a two-page Information Paper with subject: Convalescent Leave for T32 AGR Soldiers, dated 15 January 2013, from the ARNG-CSG * a memorandum with subject: Convalescent Leave for T32 AGR Soldiers, dated 20 March 2013 a. He states the Deputy State Surgeon and the NGB should have requested further clarification on the "accommodate light desk duty" justification and not taken the commands sincerity on the matter. He believes the verbiage gave the impression or appearance that a formal light duty plan existed in August, September and October of 2011, but was not used, was incorrect and disingenuous. A light duty or accommodation for desk duty plan was not provided to him. The Deputy State Surgeon and the NGB should have verified or validated the plan and he believes their actions exhibited a fundamental failure of basic leadership and oversight. He further believes their action present the appearance of collusion since no questioning or verification was conducted to verify a light duty plan existed. If the higher headquarters would have interviewed his doctor to verify the presence of a formal light duty plan and his participation in it, then leave would not have been taken from him and therefore it would not have been necessary to file an appeal. b. With respect to the advisory opinion, it states that necessary documentation was received in May and June 2012 for the request on the extended convalescent leave. The extended convalescent leave required submission and approval in August 2011, it is inexplicable how his chain of command was allowed 9 months to submit the request and for higher headquarters to allow it to happen. It again exhibits a failure of leadership and oversight and a disregard for the process. He tends to believe this action may have been intentional to negatively impact him. c. The Deputy State Surgeon stated additional documentation was received as part of the request for the extended convalescent leave. However, he only reviewed and signed the DA Form 31 and was led to believe, and expected, that the extended convalescent leave would be approved. Also, his chain of command would prepare and submit the request on his behalf. All other documentation was compiled and submitted by his chain of command without his involvement, input, knowledge, or review. d. From August 2011 to July 2012, he submitted a total of approximately 30-35 pages of documentation to his chain of command to support the extended convalescent leave request. He believed it was being processed for approval. He was informed of additional documents that were submitted to the Deputy State Surgeon in July 2012. These documents were a physical profile and documents associated with his military medical review board process that has no connection to his convalescent leave request. e. The Soldier does not develop, formulate, or compile the light duty plan. It is the responsibility of the commander and staff to develop the plan, coordinate with the attending physician and other support requirements. Although the Garrison Commander inquired about the possibility of him going to an armory or Camp Roberts in August, he stated any plan needed to be approved by his civilian doctor. However, no plan was formally developed nor presented to his doctor. A desk duty plan was discussed on 19 September 2011 but not formally recommended until 3 October 2011. Any type of duty should not have been allowed until 8 November 2011, the date his doctor said he could resume duties. f. He was unaware that the NGB Chief Surgeon was the approval authority for convalescent leave exceeding 30 days for all ARNG Title 32 Soldiers. Nevertheless, a military medical facility/provider must still recommend continued convalescent leave over 30 days. In January and March 2013, a revised and much more comprehensive policy on convalescent leave was adopted by NGB after his separation from the CAARNG. Other than the Deputy State Surgeon's statements, it is unclear if any of the tracking systems, i.e. MATS, or procedures were available or used effectively. g. He expresses his dissatisfaction with how the NGB Chief Surgeon can deny his appeal in 1 day or less. He believes it would take longer to review and perform an investigation to clarify the issues and render a decision nor was his doctor ever consulted. If a proper review had been done by the Deputy State Surgeon and the NGB his leave would not have been taken away from him and therefore there would be no need to file an appeal. h. A DA Form 3349 shows he was placed on a permanent profile on 18 September 2009 for the medical conditions of hypertension and degenerative disk disease (DDD) back pain. i. A Standard Form 600 lists in chronological order a series of events and requests for medical documents from 21 July 2010 to 27 May 2011 involving his referral to the IDES. j. He provides emails between him and the Garrison Commander, from 15 August to 24 August 2011, discussing his current medical condition, status to return to duty, the need for a sworn statement on his accident, and the limitations that his civilian medical doctor specified. k. He provides an Information Paper, subject: Convalescent Leave for T32 Active Guard Reserve (AGR) Soldiers, dated 15 January 2013, from the ARNG-CSG, which outlines the process and clarification of requirements for those AGR Soldiers placed in a convalescent leave status. l. He provides a memorandum, dated 20 March 2013, issued by the NGB for all States, Territories and the District of Columbia, providing policy guidance on convalescent leave for Title 32 AGR Soldiers. 20. In addition to what was addressed above, he provides: a. Numerous emails between him and his chain of command concerning his medical status, medical documentation needed, and leave and work status during the timeframe from August 2011 to June 2012. b. Ten various documents concerning his retirement and his promotion to LTC prior to his transition from military service. c. Three letters from the NGB to his Member of Congress, dated between 21 March and 6 December 2013, explaining the applicant's situation, rationale and the final determination on his convalescent leave requests. These letters additional provided that since he was in a retired status, he would have to address his concerns to the ABCMR. REFERENCES: 1. Army Regulation 600-8-10 prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System. a. Paragraph 2-4 contains the policy for payment of accrued leave. It states, in pertinent part, that by law, payment of accrued leave is limited to 60 days one time during a military career, unless earned in a missing status. b. Paragraph 5-3 outlines the rules to use convalescent leave. It states, in pertinent part, that convalescent leave is a non-chargeable absence from duty granted to expedite a Soldier's return to full duty after illness, injury, or childbirth. 2. National Guard Regulation 600-5 (The Active Guard/Reserve (AGR) Program Title 32, Full-Time National Guard Duty (FTNGD)), in effect at the time, prescribes the policies procedures for management of ARNG Soldiers in the AGR Program who serve on FTNGD. Paragraph 3-6 outlines leaves and passes and states that Army Regulation 600-8-10, except as modified by this regulation, apply to AGR Soldiers. It states, the Adjutants General may approve convalescent leave from 1-30 days on recommendation of hospital commander or State Surgeon. Requests in excess of 30 days and extensions beyond 30 days will be forwarded to NGB for approval. 3. Title 37, U.S. Code, section 501, provides that "the number of days of leave for which payment is made may not exceed sixty, less the number of days for which payment was previously made under this section after 9 February 1976." 4. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-2c, states the ABCMR will decide cases on the evidence of record. It is not an investigative agency. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's request for compensation for 60.5 days of ordinary leave he claims should have been non-chargeable convalescent leave was carefully considered. 2. The applicant contends his chain of command and higher headquarters were negligent in their duties and conspired against him in providing him adequate convalescent leave and extended (additional) convalescent leave and forced him to use ordinary leave in order to recuperate after his injury. 3. The DA Form 31 he provides shows his chain of command did provide non-chargeable leave of 42 days, during the period 6 July to 17 August 2011 following his injury. This is evidence that his chain of command provided not only the 30 days of convalescent leave they were authorized to grant, as outlined in Army regulations, but additional non-chargeable time (e.g. sick-in quarters/ hospital). 4. He states he does not understand why the NGB was interjected into the decision of his request for extended (additional) convalescent leave. In accordance with applicable regulation, in effect at the time and updated, the NGB is authorized to approve all convalescent leave requests in excess of 30 days for all Title 32 AGR Soldiers. The evidence he submitted from the NGB highlights that they reviewed all applicable medical documents as well as the chain of command's recommendation and considered his request and appeal and to his disappointment disapproved both. 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. There is a presumption of regularity in the conduct of government affairs. 6. His contentions were noted and considered; however, there is no definitive evidence to suggest that either his chain of command, the State Deputy Surgeon, or the NGB was arbitrary or capricious in their actions, or as the advisory opinion opined, after a thorough review of his medical records, erred in their decision to deny him additional convalescent leave based on his condition and the opportunity for his return to duty with stipulations. Therefore, there is no evidence to suggest an error or injustice occurred. 7. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. A formal hearing may be authorized by the Board or by the ABCMR Director whenever justice requires. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008457 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008457 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2