MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 February 2003
         DOCKET NUMBER: AR2002074433

         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:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Gail J. Wire		Member
Mr. Robert J. Osborn, II		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)

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APPLICANT REQUESTS: That he be allowed to sell 60 days of accrued leave as an exception to policy.

APPLICANT STATES: In effect, that at the time he was appointed to the rank of warrant officer one (WO1) he attempted to sell 60 days of accrued leave and was told that he could not do so until he was promoted to the rank of chief warrant officer two (CW2). He goes on to state that when he was promoted to CW2 he attempted to sell the leave and was informed that he could not do so. He also states that in his present position as a Special Forces assistant detachment commander, he has been unable to maintain his leave balance at an acceptable level because of mission and training requirements. He further states that he understands that the burden of managing his leave is ultimately between him and his command; however, he relied on information he believed to be true at the time he accrued the leave and he cannot ignore his obligation to his fellow soldiers by not being present for training that is necessary for their survivability.

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

He enlisted in the Regular Army on 26 January 1988 and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 December 1995. He was honorably discharged on 24 November 1998 to accept an appointment as a warrant officer. He was appointed to the rank of WO1 on 25 November 1998 and was transferred to a Special Forces detachment at Fort Campbell, Kentucky, for duty as an assistant detachment commander. He was promoted to the rank of CW2 on 25 November 2000.

In the processing of this case a staff advisory opinion was obtained from the Department of the Army Office of the Deputy Chief of Staff, G1, which opined that there was no authority to grant payment of unused leave for soldiers going from enlisted to warrant officer status. Officials at the Compensation and Entitlements Division further opined, in effect, that the decision to take leave or accrue a large leave balance was a personal decision and the loss of leave accrued beyond that authorized is the result of retaining such high leave balances.

The advisory opinion was provided to the applicant for comment and the applicant responded to the effect that he relied on information that he believed to be accurate at the time and that he has been pursuing a solution to the problem since he discovered that he relied on inaccurate information to his detriment. He further states that he has kept on pace with his detachment block leave and deployments and has been unable to take additional leave to better manage his leave account because of deployments and the required necessary training for units such as his.

Army Regulation 600-8-10 serves as the authority for leaves and passes. It states, in pertinent part, that 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. 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. Chapter 3 of that regulation provides the provisions for special leave accrual. The intent of special leave accrual is to provide relief to soldiers who are not allowed leave when undergoing lengthy deployments or during periods of hostility.

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. It also provides that accrued leave may not be paid for enlisted members who are discharged for the purpose of accepting an appointment as a warrant officer.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. 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. The applicant has failed to submit evidence that would satisfy this requirement.

2. Although it is not the intent of the Government that soldiers lose their accrued leave, soldiers are routinely denied leave due to mission essential needs. There are no guarantees that leave will always be approved or that circumstances will change that prevent one from taking leave for an extended period of time, which is an inherent risk in accumulating large sums of leave for such purposes.

3. While it is unfortunate that the applicant may loose some of his accrued leave, as do many soldiers every year, 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 leave prior to accumulating such a large leave balance.

4. The applicant’s contentions have been noted by the Board; however, the applicant simply accumulated a large leave balance before he attended the warrant officer candidate course and ran the risk of not being able to take it or be paid for it. This personal decision on his part does not constitute error or injustice on the part of the Department.

5. The Board understands the operational tempo of units such as his and it appreciates his dedication to his profession. However, it is also reasonable for the Board to presume that he understood the operational tempo as well and could have better planned for what was an inevitable event.

6. Notwithstanding the foregoing conclusions, there are no provisions in the applicable law that allow for payment to the applicant for accrued leave at this time under the circumstances presented.

7. Although the applicant has not provided specific times and circumstances as to why he has not been able to take leave, there are provisions for special leave accrual that he and his command may wish to consider if the circumstances are applicable to his situation.

8. 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

__gw____ __rjo____ ___rvo __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074433
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/13
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 254	121.0200/LUMP SUM SETTLEMENT
2.
3.
4.
5.
6.