PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 November 2002
         DOCKET NUMBER: AR2002068017


         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Herbert O. Fry		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.

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2. The applicant requests reinstatement of his Special Leave Accrual (SLA) that was erroneously taken away by the Defense Finance and Accounting Service (DFAS) in October 1999.

3. The applicant states that he served 2 years in a hostile fire pay (HFP) zone and was entitled to SLA. Upon his return to the US, DFAS erroneously took 12 days of SLA in October 1997. After 18 months of working with his installation finance office, his SLA was reinstated in April 1999 only to be erroneously taken away again in October 1999. He began working through his installation finance office again; however in October 2000 DFAS acknowledged that 8.5 of the
12 days of SLA should have remained. DFAS also stated that they would not reinstated his remaining days and that his only recourse was to apply to this Board to readdress his issue. In support of his application, he submits copies of his: reassignment orders; extract of the Department of Defense (DOD) Leave Policy; several leave and earning statements (LESs); and a letter from DFAS.

4. The applicant’s military records show he was appointed on 15 December 1978, as a second lieutenant. He continues to serve on active duty as lieutenant colonel (LTC/0-5) at Fort Bliss, Texas.

5. The applicant provided a copy of a memorandum, dated 12 October 2000, Subject: SLA that was prepared by him to DFAS. The applicant requested that DFAS reconsider his case concerning his SLA that was taken away in October 1999. He requested that they reconsider his denial based upon true facts and evidence in his case.

6. He was stationed in a HFP zone for 26 months (June 1995 to July 1997). He was briefed on the SLA Program upon entering the area and upon his departure that he could accrue up to 90 days of leave and have 3 years to use it upon his return to the US. He was never briefed on the policy that DFAS used to implement this policy and it does not consider or conform to the actual policies for leave in most Army units on the ground (block leave, etc.).

7. He was informed that his SLA would carry over; however, it did not. He was reinstated with 12 days leave at the end of April 1999 which was taken away again in October 1999. He began to work the issue again with his installation finance office and DFAS later acknowledge that only 5 days leave should have been taken instead of 12 days, leaving 7 days of special leave in fiscal year (FY) 2000. Since DFAS made the error twice in taking his special leave, he now requests that this error be corrected, that his leave be reinstated, and that he be allowed to use his leave upon approval of his request.




8. The applicant provided a copy of letter from DFAS, dated 24 October 2000, Subject: SLA. DFAS stated that in response to the reconsideration of the applicant's SLA claim, they had reviewed and computed the applicant's earned, used, and leave balance based on his LESs, in comparison to the Actual Accrual based on following referenced regulations. The applicant referenced separate periods of time in 1999 providing specific balances, one of which was not listed on his LES. These leave periods were taken from the LES's only. To fairly assess this situation, the applicant needed to look at the entire period just prior to entering the HFP zone through current year or month.

9. The applicant entered into the HFP zone in June 1995 with a leave balance of 63 days. This was not protected leave for the purposes of SLA and the ability to maintain a 90-day balance. Also any leave taken within the HFP zone area would decrease the SLA balance according. At that time the applicant departed the SLA area with a SLA leave balance of 35 days. This would be the amount of SLA leave that would be protected which was nowhere near 90 days, but that 35 day balance could still decrease based on regulations for earning and using. The lowest point of SLA reached for the applicant was 8.5 days in August 1998.

10. If utilizing the LES leave balance, which was supplied to the applicant on a monthly basis, the applicant's accrued leave balance for FY 2000 never dropped below a 60-day balance except once and that was at the FY end by 1.5 days.
Utilizing either balance, actual or LES, the applicant had not shown any act or compliance with Army Regulation 600-8-10 and stock piled his leave, thus causing his dilemma. This regulation specifically outlines the applicant's case and the problems encountered. The applicant's only alternative was to apply to this Board for relief.

11. In the processing of this case an advisory opinion was provided by the Total Army Personnel Command (PERSCOM), Chief, Personnel Services Branch. PERSCOM stated that the applicant was requesting reinstatement of lost leave and correction of his military record. By law, soldiers may accrue and carry forward up to 60 days of leave at the end of each FY. However, soldiers assigned to a hostile fire/imminent danger area or assigned duties in support of contingency operation may carry forward a maximum of 90 days leave at the end of the FY. A review of the documentation provided confirmed that the applicant met the criteria established by statute and was approved for SLA carryover for
12 days leave lost at the end of FY 1997 (30 September 1997). The applicant's leave account had been adjusted on numerous occasions by DFAS, resulting in erroneous entries on his leave account. In April 1999, DFAS adjusted the applicant's leave account to show reinstatement of 7 days leave. Due to unforeseen reasons, the applicant's leave account had either been credited with unauthorized leave or debited for leave not taken, which had caused some of the problems. To date, the applicant's leave account has not been corrected to show reinstatement of the authorized 12 days.
12. In accordance with statutory and regulatory guidance, the applicant had until the third fiscal year after the qualifying service terminated (30 September 2000) to retain authorized SLA. It was concluded that the applicant's leave account and military record be adjusted to show reinstatement of 5 days leave versus 12 days, due to DFAS reinstating 7 days leave in April 1999. PERSCOM recommended approval of the applicant's case.

13. The applicant was provided 15 days to respond to the favorable opinion for possible comment prior to consideration of his case. However, the applicant
had not responded in the time allotted.

14. Army Regulation 600-8-10 (Leaves and Passes), specifies that soldiers on active duty earn 30 days of leave a year with pay and allowances at the rate of
2 ½ days a month. This entitlement excludes periods of Absent Without Leave
provided soldier is convicted; excess leave; unauthorized absence because of detention by civil authorities; absence in custody of civil authorities under provisions of Article 14, Uniformed Code of Military Justice (UCMJ) provided soldier is not entitled to receive pay and allowances; and absence over 1 duty day due to use of drugs or alcohol or because of disease or injury resulting from soldier's misconduct.

15. The leave program is designed to encourage the use of leave as it accrues rather than to accumulate a large leave balance. Soldiers who build their leave balance to the maximum level risk losing their leave should a situation occur that prevents or delays leave use. Soldiers may accrue and carry forward up to 60 days leave at the end of each fiscal year. Accrued leave that exceeds 60 days at the end of the fiscal year is lost except as authorized for special leave accrual up to 90 days to provide relief to soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility. Special accrual only applies in cases of deployment or during periods of hostility. Accrued special leave must be used before the end of the third fiscal year after the fiscal year in which the qualifying service ended.

16. Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 35, paragraph 350102A, states: “That the last leave earned is the first leave used."

17. Title 10, United States Code, section 701 pertains to entitlement and accumulation and supports the purpose of special leave accrual. Paragraph
f(1) states, in pertinent part, that a member who serves on active duty for a continuous period of at least 120 days in an area in which he was entitled to special pay while deployed under hostile fire or during periods of hostility may accumulate 90 days of leave. Leave in excess of 60 days accumulated is lost unless it is used by the member before the end of the third fiscal year after the fiscal year in which the service terminated.
CONCLUSIONS:

1. The applicant was stationed in a HFP zone, was briefed on the SLA Program upon entering the area, and upon his departure. He was informed that he could accrue up to 90 days of leave and had 3 years to use it upon his return to the US.

2. The applicant requested that DFAS reconsider his case concerning his SLA. He was informed that his SLA would carry over; however, it did not. He met the criteria established by statute and was reinstated with 12 days of leave at the end of April 1999; however, this leave was taken away in October 1999. DFAS later acknowledged that only 5 days leave should have been taken instead of 12 days, leaving 7 days of special leave in FY 2000. He later requested that this error be correct due to his special leave being taken by DFAS twice.

3. DFAS reviewed the applicant's SLA claim, computed his earned, used, and leave balance based on his LESs, in comparison to the Actual Accrual based on regulations. After a review of the applicant's records, DFAS concluded that his leave balance for FY 2000 never dropped below a 60-day balance except once. Utilizing either balance, actual or LES, the applicant had not shown any act or compliance with regulation and stock piled his leave, which caused his dilemma.

4. PERSCOM stated that the applicant could accrue and carry forward up to
60 days of leave at the end of the FY. Soldiers assigned to hostile fire/imminent danger areas or assigned to duties in support of contingency operations may carry forward a maximum of 90 days leave at the end of the FY. PERSCOM also stated that his case was confirmed and that his leave account had been adjusted on numerous occasions by DFAS, resulting in erroneous entries. PERSCOM further stated, that in accordance with regulatory guidance, the applicant had until the third FY after the qualifying service terminated to retain his authorized SLA. PERSCOM concluded that the applicant's leave account and military record be adjusted to show reinstatement of 5 days leave versus 12 days, due to DFAS reinstating 7 days leave in April 1999.

5. PERSCOM recommended approval of the applicant's case and this Board concurs with PERSCOM's recommendation.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.







RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by reinstating 5 days leave under SLA.

BOARD VOTE:

__sc___ __hf___ __ra____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Samuel A. Crumpler____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002068017
SUFFIX
RECON
DATE BOARDED	20021126
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	252
2.
3.
4.
5.
6.