2. The applicant requests payment of 23.5 days of accrued leave that he lost through no fault of his own.
3. The applicant states that he was flagged on 10 August 1994 pending a civilian investigation. He was cleared of all charges and the flag was lifted on 11 May 1995. His request for retirement was approved on 12 May 1995 with an effective date of 1 September 1995. On 31 July 1995, he was again flagged pending court-martial charges. He then submitted a request for transition leave and permissive temporary duty (TDY) in conjunction with his retirement during the period 22 July 1995 through 31 August 1995. He goes on to state that his commander would not approve his leave. Consequently on 1 October 1995, he lost 23.5 days of accrued leave. He further states that his retirement date was changed to 1 March 1996, that the court-martial charges were subsequently dropped, and that the flag was lifted on 16 October 1995. However, he had already lost 23.5 days of leave that he could no longer take. In support of his application he submits a copy of his request for leave (DA Form 31).
4. The applicant's military records show that the applicant enlisted on 20 August 1975 for a period of 3 years and remained on active duty through continuous reenlistments. He was promoted to the pay grade of E-6 on 21 March 1982.
5. On 10 August 1994 the applicants commander initiated a suspension of favorable personnel actions (FLAG) against the applicant due to a pending investigation by civilian and military police investigators. The flag was lifted on 11 May 1995.
6. On 16 May 1995 orders were published directing the applicants non-disability retirement for length of service effective 1 September 1995. (Personnel serving in the pay grade of E-6 have a mandatory retirement upon completion of 20 years and 30 days of total active service.) The applicant would have had 20 years and 11 days of total active service at the date of his scheduled retirement.
7. The applicant was again flagged by his commander on 21 July 1995 pending the outcome of court-martial charges preferred against the applicant. He was subsequently extended past his scheduled expiration of term of service and his retirement date was changed to 1 March 1996.
8. On 1 October 1995 the applicant lost 23.5 days of accrued leave. The 23.5 days lost was the amount in excess of the 60 days of accrued leave he was authorized to carry over to the next fiscal year.
9. The applicant was notified on or about 16 October 1995 that the general court-martial convening authority had withdrawn the charges and specifications preferred against him on 21 July 1995. The flag was also lifted on 16 October 1995.
10. The applicant was honorably released from active duty in the pay grade of E-6 on 29 February 1996 and placed on the retired list effective 1 March 1996.
11. The copy of the DA Form 31 submitted by the applicant in support of his application indicates that the applicant requested permission to take permissive TDY from 22 July 1995 to 10 August 1995 and transition leave from 11 August through 31 August 1995. The DA Form 31 is undated; however, a recommendation for approval by his supervisor is indicated on the form.
12. In the processing of this case an advisory opinion was obtained from the Total Army Personnel Command (PERSCOM) which opined, in effect, that the applicant lost his accrued leave through no fault of his own and that his request should be approved.
13. A staff member of the Board, during the processing of this case, contacted officials at the local Defense Finance and Accounting Service (DFAS) to ascertain the applicants leave balance at the time of his retirement. The DFAS officials indicated that the applicant had 72.5 days of accrued leave at the time of his retirement. He took 72 days of transition leave and cashed in .5 days of leave. His leave account indicates that he only cashed in .5 days of accrued leave during his entire military career.
14. Army Regulation 630-5 serves as the authority for leaves and passes. It states, in pertinent part, that soldiers may be granted leave in conjunction with transition, to include retirement, upon request, but it will not be granted if it interferes with timely processing or transition.
15. That regulation also states 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 the leave system as an extra monetary program defeats the intent of Congress to provide for 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.
CONCLUSIONS:
1. It is evident, based on the circumstances in this case, that the applicants request for leave was denied by his commander and that he lost his leave as a result of that denial.
2. There is no guarantee that transition leave will always be approved. Additionally, circumstances may change that may prevent one from taking transition leave, which is an inherent risk in accumulating large sums of leave for such purposes. Nonetheless, it is not the intent of the Department that soldiers lose their accrued leave through no fault of their own.
3. Inasmuch as the applicant only cashed in .5 days of the allowable 60 days during his military career, it would be appropriate and just to pay the applicant for the 23.5 days of accrued leave he lost while serving under a suspension of favorable personnel actions, which was closed favorably.
4. In view of the foregoing, it would be equitable and just to correct the applicants records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by paying the individual concerned for the 23.5 days of leave he lost on 1 October 1995.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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