RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            25 August 2005
      DOCKET NUMBER:   AR20040010385


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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, in effect, restoration of 30 days of leave,
payment of basic allowance for subsistence (BAS) and basic allowance for
housing (BAH) for the lost leave, amendment of his retirement date from 1
January to 1 February 2004 and readjustment of retired pay to account for
an amended retirement date of 1 February 2004, to include back retired pay
through the present.

2.  The applicant states, in effect, he was deployed to Kuwait, Uzbekistan,
Afghanistan and Iraq in support of the Global War on Terrorism (GWOT) from
November 2001 through July 2003.  Upon his return to the United States, he
had to complete after action reports and begin transition activities in
order to begin his new civilian Federal Government job at the Office of
Personnel Management (OPM) as a member of the Senior Executive Service on 1
October 2003.  He states that he began transition leave on 1 October 2003
and officially left the Army rolls on 1 January 2004.

3.  The applicant claims he was finally able to begin clearance at the
transition point in September 2003.  He had accrued 115 days of leave,
which he had been unable to take because he was deployed and completing
post deployment after action reports.  He claims that because the policy in
effect at the time only allowed a leave carryover balance of 90 days for
special leave accrual, which he used as transition leave.  The remaining 25
days of his accrued leave could not be brought forward and he was unable to
cash the leave until his very last day of active duty, which in his case
was 31 December 2003.  As a result, when he received his last leave and
earnings statement (LES), he had lost 30 days of leave.  He contends that
no military person should ever lose leave when retiring, especially when
returning home from combat deployments.

4.  The applicant also states that National Defense Authorization Act
(NDAA) of 2004, which was effective 1 October 2003, resolved the issue of
lost leave in excess of 90 days for Soldiers who were deployed in combat
zones.  Under this act, the Department of Defense (DOD) was given the
authority to approve up to 120 days leave for Soldiers in his circumstances
(special leave accrual because of deployment of at least 120 days of
continuous service in an imminent danger/hostile fire area).

5.  The applicant states that on 28 October 2004, the Army issued personnel
policy guidance on this subject in Military Personnel (MIPER) Message 04-
298.  However, this policy only affected Soldiers after 1 October 2004,
which is great for Soldiers who are still on active duty; however, it does
not take care of the first wave of Soldiers who fought in the GWOT and
faced the same leave accrual issues.  The new policy did not apply to
Soldiers who lost leave in previous years based on being deployed in
support of Operation Enduring Freedom and Iraqi Freedom.  He claims, in
essence, these Soldiers were penalized for being deployed in combat, which
he claims is unconscionable and should be addressed as a matter of fairness
and equity.

6.  The applicant provides a self-authored statement and the documents
identified in the eight tabs listed on the index provided in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  On 31 December 2003, the applicant was released from active duty
(REFRAD), in the rank of colonel, for the purpose of retirement.  The DD
Form 214 he was issued, which covers the active period from 30 October 1987
through
31 December 2003, shows he completed a total of 22 years, 3 months and
21 days of active military service, and held the rank of colonel on the
date of his REFRAD.

2.  Headquarters, Fort McPherson Permanent Orders Number 327-1, dated
23 November 2001, assigned the applicant to temporary duty in Kuwait for a
period of 315 days, in support of Operation Enduring Freedom, effective
24 November 2001.

3.  Headquarters, Fort McPherson Permanent Orders Number 298-146, dated
25 October 2002, ordered the applicant’s deployment to Kuwait, in support
of Operation Enduring Freedom, effective on or about 1 November 2002.

4.  A Request and Authority for Leave (DA Form 31) on file shows the
applicant requested 112 days of transition leave from 11 September through
31 December 2003.  The period from 11 through 30 September 2003 was
permissive temporary duty (PTDY) and the period from 1 October through 31
December 2003 was transition (accrued) leave.  This leave request was
approved and the applicant departed on transition leave on 11 September
2003.

5.  The applicant provides a Leave and Earnings Statement (LES) for the pay
period ending on 31 December 2003.  This document shows he brought forward
90 days of leave and lost 30 days of leave.

6.  Army Regulation 600-8-10 (Leaves and Passes) provides for the policies
and procedures regarding the use of regular and special passes.  Paragraph
2-4, 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.

7.  Paragraph 3-3(f) of the leave regulation states, in pertinent part,
that leave accrual in excess of 60 days is credited only for use, not for
payment.  Paragraph 3-3(e) states, in pertinent part, that in determining
eligibility for special leave accrual the following criteria must be
considered: the date command was notified of deployment requirements; who
directed deployment requirement; unclassified name of the operation, if
applicable; date the Soldier was notified of the deployment requirement;
date of departure on deployment and date of return or projected return;
information concerning commander's annual leave program and the Soldier's
ability to take leave during the fiscal year; the Soldier's leave schedule
prior to notification of the deployment requirement; whether the Soldier
could have taken any leave after notification of deployment and prior to
departure on deployment; whether Soldier could have taken any leave or can
take leave while deployed; if not, what prevented or is preventing leave
use; and how many leave days Soldier lost or will lose at the end of the
fiscal year.

8.  MILPER Message 01-263 dated 27 September 2001, provided for
authorization for special leave accrual for all military members.  The
message stated, in pertinent part, that the Defense Finance and Accounting
(DFAS) would complete an accountability of leave during November 2001 to
allow the processing of all FY01 leaves to occur.  It further stated that
the total amount of SLA authorized is only 20 days and this only applies to
leave in excess of the maximum 60 days allowed for annual leave carry over.
 Any leave in excess of 20 days, will be considered lost.  All SLA was
required to be used by
30 September 2002.  However, this was superseded by MILPER Message
02-088 dated 4 February 2002, which stated that Soldiers must use
accumulated leave in excess of 60 days before the end of the third fiscal
year after the service terminated (30 September 2004).

9.  MILPER Message 04-298 implemented the special leave accrual provisions
for fiscal year 2004.  It authorized Soldiers who served in a hostile
fire/imminent danger area for a continuous period of 120 days or more to
retain and accumulate up to 120 days of leave.  It further stipulated that
leave in excess of 60 days accumulated under this provision would be lost
if not used by the end of the third fiscal year after the fiscal year in
which the continuous period of service terminated.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms special leave accrual provisions for
all military members have been in effect, in some form, since fiscal year
2001.  However, all the announced special leave accrual provisions, to
include the fiscal 2004 provisions announced in MILPER Message 04-298, are
applicable for the use of leave only.  The special leave accrual provisions
do not provide for payment of leave beyond the 60 days authorized by law.

2.  The evidence of record in this case confirms the applicant was
authorized special leave accrual based on his deployments in support of the
GWOT.  The December 2003 LES he provides shows he was allowed to bring
forward
90 days, as opposed to 60 days, of accrued leave at the end of fiscal year
2003, as was authorized by the special leave accrual provisions in effect
at the time.

3.  Further, the record confirms the applicant voluntarily chose his
retirement date in order to meet a civilian employment requirement.  There
is no evidence of record that suggests he was forced to retire on the date
he elected, or that he was ever denied the use of accrued leave prior to
his release from active duty for retirement.  Thus, although unfortunate,
there appears to be no error or injustice related to his loss of accrued
leave.

4.  By law and regulation, special leave accrual in excess of 60 days is
credited for use only and not for payment.  Therefore, given the applicant
is no longer on active duty and able to take this leave, and since the
governing law and regulation do not allow for payment of special leave,
there is no effective relief that could be granted at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MKP_  ___REB__  __LMB__  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.





            ____Margaret K. Patterson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010385                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/25                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/12/31                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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