RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 October 2005
      DOCKET NUMBER:  AR20050000710


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. 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 his special leave accrual (SLA) days be
corrected and, in effect, that the debt he owes for excess leave taken be
cancelled.

2.  The applicant states he retired on 1 March 2004.  He took a combined
total of 112 days of transitional leave and permissive temporary duty
(PTDY) (92 days leave and 20 days PTDY).  His June 2003 leave and earnings
statement (LES), the last one he had available, indicated a leave balance
of 72.5 days.  Adding leave earned in July through February 2004 would
render a leave balance of 92.5 days.  Also, his last active duty LES, for
February 2004, showed a credit balance of 90.0 days with 2.5 days lost.  He
was deployed to Operation Enduring Freedom from about 17 February to 14
July 2003.  He had little opportunity to take leave before deploying or
after returning.

3.  The applicant states the Defense Finance and Accounting Service (DFAS)
notified him in July 2004 he owed $2,747.78 due to a negative 13-day leave
balance including a 1-day penalty.  After talking with DFAS, they corrected
a    10-day error in his PTDY period.  DFAS then re-audited his leave
carryover and determined he owed 5 days with a "1-day penalty," 6 days
total.  DFAS explained that, according to their internal instructions, he
was authorized to carry over (in excess of 60 days) into the new fiscal
year only the amount of days he earned while in the combat zone.  He had
earned 15 days while deployed; therefore, by their calculations his leave
carryover at the end of fiscal year 2003 should have resulted in a 5-day
loss.  They did not enclose any LESs that would have let him better examine
his balances.

4.  The applicant states he contacted DFAS again, and DFAS provided LESs.
The Remarks section of his LESs continued to state that 77.5 days were his
combat zone leave carryover.  Army Regulation 600-8-10 (Leaves and Passes),
dated 31 July 2003, allows O-5 commanders to approve SLA when the service
member deploys for greater than 120 days.  It states SLA can be carried
forward for up to 90 days at the end of the fiscal year.  More critically,
the regulation does not stipulate that special leave accrual is limited to
the balance as of the date of departure from the combat zone as noted in
some internal, and non-accessible DFAS guidance (emphasis in the original).

5.  The applicant stated he deployed for over 120 days.  He was verbally
counseled he was able to carry forward leave without restriction due to his
time in the combat zone.  His LES confirmed that fact until he was
officially retired.  He had no opportunity to adjust his leave request and
should not be held personally accountable for differences between DFAS
internal regulatory guidance and Army regulations and oversight mistakes by
official finance and accounting personnel from his losing unit and support
directorates.

6.  The applicant provides letters to DFAS dated 20 July 2004 and 1 October
2004; letters from DFAS dated 24 September 2004 and 12 October 2004; a DFAS-
DE Form 0-641 (Statement of Military Pay Account); an extract from DFAS-DEM
7073-1; an extract from the Department of Defense Financial Management
Regulation, Volume 7A; two Statements of Military Leave Records for the
period 1 October 2003 to 29 February 2004; his request for retirement; an
LES for February 2004; an extract from Army Regulation 600-8-10 (versions
dated 1 July 1994 and 31 July 2003); and a DD Form 2648 (Preseparation
Counseling Checklist).

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed an
aviation warrant officer and entered active duty on 17 February 1988.  He
was promoted to Chief Warrant Officer Four on 1 February 2002.

2.  The applicant deployed to Iraq on 17 February 2003.  He applied for
retirement on 5 June 2003.  He redeployed from Iraq on 14 July 2003.  He
retired on 1 March 2004.

3.  In an undated letter from DFAS to this Board, DFAS noted the applicant
had submitted a waiver request for the debt of 6 days excess leave.  A
partial waiver of $791.43 was approved and $495.95 was denied.  The
original debt of $1,287.38 was adjusted for the $465.06 in collections and
the waiver approval of $791.43 which leaves a debt balance of $32.17.

4.  In the processing of this case, an advisory opinion was obtained from
the Compensation and Entitlements Division, Office of the Deputy Chief of
Staff, G-1. That office opined that a careful review of the facts
surrounding the applicant's situation indicated he was due one day's pay
and allowances ($226.13) for a leave day he was charged for when he should
not have been.  Per Title 10, U. S. Code, section 701(f), SLA is provided
to Soldiers who serve in an area in which they are entitled to hostile fire
or imminent danger pay for at least 120 consecutive days.  Also per this
section of Title 10, U. S. Code, SLA is earned in the combat zone at 2.5
days a month.  The applicant's accrued leave balance prior to deploying was
60 days as of 31 January 2003.  He then served in the combat zone for 120
days where he earned 15 days SLA.

5.  The advisory opinion noted SLA does not continue to accrue after the
Soldier departs the combat zone.  As such, the applicant earned 5 days of
regular leave for August and September 2003 after he departed the combat
zone.  Those        5 days were not to be carried forward.  At the end of
September 2003, the maximum number of SLA days he could carry forward was
15.  His total authorized leave balance at the end of September 2003 should
have been        75 days (15 days SLA leave and 60 days regular leave).  He
then earned       12.5 days from October 2003 through February 2004 for a
total of 87.5 days of leave available to take.  He took 92 days.  As a
result, he owed the government  5 days pay and allowances for the 5 days
leave he took that were not authorized.

6.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  On 19 October 2005, he concurred with the advisory
opinion.

7.  Army Regulation 600-8-10, chapter 3 implements the statutory authority
governing accrual of special leave.  Paragraph 3-2 of both the 1 July 1994
and 31 July 2003 versions state SLA is authorized to Soldiers who served in
an    area in which he or she was entitled to hostile fire or imminent
danger pay for at least 120 continuous days.  Paragraph 2-3b states accrued
leave that exceeds 60 days at the end of the fiscal year is lost except as
authorized in chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered and it is
noted that his LES erroneously indicated he had 77.5 days of leave
carryover.  However, the applicant indicated he was aware that leave
accrued at 2.5 days a month.  As a Chief Warrant Officer Four with over 20
years of active duty he should have been well aware that accrued leave in
excess of 60 days at the end of the fiscal year is lost.

2.  Special leave accrual policy is an uncommon exception to the normal
leave accrual rule.  However, contrary to the applicant's contention, the
regulation "does not stipulate that special leave accrual is limited to the
balance as of the date of departure from the combat zone as noted in some
internal, and non-accessible DFAS guidance," the regulation does in fact
stipulate that.  Army Regulation  600-8-10 states SLA is authorized to
Soldiers who served in an area in which he or she was entitled to hostile
fire or imminent danger pay for at least 120 continuous days.  Once the
applicant no longer served in the combat zone, he was no longer authorized
SLA.

3.  The Compensation and Entitlements Division, Office of the Deputy Chief
of Staff, G-1 opined that a careful review of the facts surrounding the
applicant's situation indicated he was due one day's pay and allowances
($226.13) for a leave day he was charged for when he should not have been.
The applicant concurred in that advisory opinion.
4.  In an undated letter from DFAS to this Board, DFAS indicated the
applicant had a debt of $1,287.38 for 6 days excess leave.  A partial
waiver of $791.43 was approved.  Collections in the amount of $465.06 had
already been made, which left a debt balance of $32.17.

5.  The Board agrees with the advisory opinion's calculation that the
applicant had a debt of 5 days (not 6 days) excess leave.  Therefore, DFAS
should recalculate his debt based upon excess leave of 5 days and adjust
his debt accordingly based upon the waiver already granted, the collections
already taken, and the current debt balance.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__mhm___  __alr___  __lds___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by having DFAS recalculate his debt based upon
excess leave of 5 days and adjusting his debt accordingly based upon the
waiver already granted, the collections already taken, and his current debt
balance.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
canceling the debt he owes for excess leave taken.




                                  __Melvin H. Meyer_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000710                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051027                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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