RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 JUNE 2005
      DOCKET NUMBER:  AR20040007233


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Hubert Fry                    |     |Member               |
|     |Ms. Linda Simmons                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be paid for 28 days of leave that he
lost.

2.  The applicant states that he was not allowed to take 28 days of leave
or paid for those 28 days because of the mission requirements of the 160th
Special Operations Aviation Regiment.  He deployed on back to back missions
in support of the ongoing war.  Because of his years of service and the
short supply of logistical operational personnel in his unit, he was not
allowed to take the leave.  His S-1 informed him in July-August 2003 that
he would not lose any days of leave above 60 days in October 2003 because
of a Department of the Army message concerning Soldiers who were in direct
support of the war.  He gave his country 30 years of service and trusted
his superiors.  The 12 May 2004 memorandum approved special leave accrual;
however, by the time his leave account was credited, he had retired.

3.  The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Regular Army chief warrant officer, pay grade W4,
who retired on 31 May 2004 with over 30 years of active service.  His DD
Form 214 (Certificate of Release or Discharge from Active Duty) shows that
he participated in Operation Enduring Freedom/Operation Iraqi Freedom in
Afghanistan/Iraq from 13 January 2003 to 15 April 2003.

2.  On 15 May 2003 the applicant requested that he be released from active
duty on 31 May 2004 and placed on the retired list on 1 June 2004.  In
making his request, he stated that as of the date of his application he had
82 days of accrued leave, and planned on taking 120 days of terminal leave
and 20 days of permissive TDY (temporary duty).

3.  A worksheet that the applicant submits with his request shows that as
of August 2003 his leave balance was 85.5 days, that he would receive 2.5
days for the month of September 2003, for a total of 88 days carried
forward for  FY 03.  It shows that he would earn 20 days of leave from
October 2003 until his retirement in May 2004, giving him a total of 108
days of available leave for retirement, plus 20 days of permissive TDY from
his battalion commander.  The ensuing total would be 128 days of available
retirement leave.

4.  On 12 September 2003 the applicant requested 128 days of leave from
   25 January 2004 to 31 May 2004, 108 days of which were accrued leave,
and   20 days of which were permissive TDY (25 January 2004 to 13 February
2004).  His request was approved.

5.  The applicant submitted a request for 100 days of leave for the period
        22 February 2004 to 31 May 2004 (permissive TDY from 22 February
2004 to     12 March 2004 and retirement leave from 13 March 2004 to 31 May
2004).  His request was approved.

6.  A Leave and Earning Statement (LES) for the period 31 August 2003 shows
that the applicant had 72 days of leave brought forward from the previous
fiscal year, FY 02, that he earned 27.5 days of leave during the current
fiscal year,    FY 03, used 14 days of leave during FY 03, that he had a
current leave balance of  85.5 days, that he had been paid for 55 days of
leave, and that he had to take 28 days of leave prior to the end of FY 03
(30 September 2003) or lose those days.

7.  The applicant’s LES for December 2003, January 2004, March 2004, April
2004, and May 2004, all show that he lost 28 days of leave.  His May 2004
LES shows that he took 80 days of leave during FY 04, and that he had a
zero leave balance at the time of his retirement.

8.  In a 12 May 2004 memorandum to the Commander, 126th Finance Battalion,
the Commander, Special Operations Command at Fort Bragg, North Carolina
approved 28 days of special leave accrual for the applicant, indicating
that he had been deployed for 82 days.

9.  On 21 July 2004 the Human Resources Command provided information to a
Member of Congress (MC) regarding the applicant’s case, stating that the
leave program was designed to allow Soldiers the opportunity to use their
accrued leave to the maximum extent possible and minimize the loss of
leave, and that leave was to be granted within the constrains of
operational military requirements; and, that when operational and mission
requirements prevented the use of accrued leave prior to transition,
commanders were encouraged to authorize Soldiers the opportunity to use a
portion of the accrued leave and “cash in” the remaining leave.  The MC was
further informed that there were no provisions under the law that allowed
Soldiers to cash in leave after separation from military service; however,
the Army Board for Correction of Military Records had the authority to
approve request for exceptions to policy.  The MC was advised that the
applicant could request this Board for relief.

10.  Army Regulation 600-8-10 provides the leave policy for Soldiers and
states that by law, payment of accrued leave is limited to 60 days one time
during a military career, unless earned in a missing status, earned by a
Reserve Component, retired Reserve, or retired member of the Regular Army
while serving on active duty in support of a contingency operation, or
earned by Soldiers who die because of an injury or illness incurred while
serving on active duty in support of a contingency operation.

11.  That regulation also states that accrued leave that exceeds 60 days at
the end of the fiscal year will be lost except for special leave accrual to
provide relief to Soldiers who are not allowed leave when undergoing
lengthy deployment or during periods of hostility.  Special leave accrual
authorizes Soldiers to carry forward up to 90 days of leave at the end of a
fiscal year.  Leave accrual in excess of 60 days is credited only for use,
not for payment.

12.  Department of Defense Financial Management Regulation 7000.14-R states
in pertinent part that a military member is entitled to receive payment for
no more than 60 days of accrued leave during a military career.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant had 72 days of accrued leave at
the end of FY 02 – in effect, he then had authority to carry forward 12
days of leave that would have otherwise been lost at the end of that fiscal
year.  He continued to accrue leave throughout FY 03, using only 14 days of
leave according to his August 2003 LES, and losing 28 days of accrued leave
at the end of FY 03 according to his December 2003 LES.

2.  The applicant’s DD Form 214 shows that he was deployed from 13 January
2003 until 15 April 2003, approximately 92 days.  Special Operations
Command authorized special leave accrual of 28 days for the applicant,
indicting that he had been deployed for 82 days, not indicating, however,
the dates of deployment.

3.  The applicant submitted his request for retirement in May 2003
subsequent to his deployment ending in April 2003, stating that he had 82
days of accrued leave, and planned to take 120 days of terminal leave and
20 days of permissive TDY.  He would have earned 30 more days of leave from
June 2003 until his retirement in May 2004, for a total of 112 days of
leave accrued prior to his retirement.  He took 14 days of leave during FY
2003; however, those leave dates are unavailable.  Nevertheless, it is
apparent that the applicant was saving his leave time in order that the
last 4 plus months of his military service would be a combination of
permissive TDY and leave.  This is further borne out by his subsequent
request for 108 days of leave and 20 days of permissive TDY, submitted on
12 September 2003, 18 days prior to the end of the fiscal year.

4.  Thus, it would appear that the applicant was under the impression that
as early as May 2003 when he requested retirement, he would be granted
special leave accrual, and consequently would not lose any leave time.  He
planned his leave for FY 04 in conjunction with his pending retirement.

5.  He requested leave for a second time, adjusting his permissive TDY and
leave dates to 100 days from 22 February 2004 to 31 May 2004.  Advancing
the start of his permissive TDY from 25 January 2004, as indicated in his
              12 September 2003 request for leave, to 22 February 2004
shows in effect that he had lost 28 days of leave.  He did take 80 days of
leave, and apparently       20 days of permissive TDY.  The authority for
special leave accrual, however, came too late to do him any good.  He was
released from active duty on 31 May 2004.

6.  There is no evidence that the applicant lost 28 days of leave in FY 03
because he was not allowed to take them because of mission requirements.
The evidence, in fact, shows that he planned to take over 100 days of leave
and 20 days of permissive TDY in FY 04, starting in January 2004.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JS____  ___HF __  ___LS___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  _______John Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007233                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050614                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |121.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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