RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            16 November 2006
      DOCKET NUMBER:   AR20060000805


      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. Andrew C. Jacobs              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Jeffrey Redmann               |     |Chairperson          |
|     |Mr. Robert Soniak                 |     |Member               |
|     |Mr. David Tucker                  |     |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, that he be paid for the balance of
approximately 40 days leave that he lost after he was paid for 60 of the
approximate 100 days of leave he had at the time of his transfer to the
Retired Reserve on 30 September 2003.

2.  The applicant essentially states that he took all of the leave he was
permitted to take, and therefore, the excess accrued leave was through no
fault of his own. The applicant also indicates that he desires to appear
before the Board in Washington, D.C., but he would prefer not to if it can
be resolved through correspondence.  He also states that he is very adamant
and determined to do what is necessary to correct this injustice, and
respectfully requests a ruling in his favor.

3.  The applicant provides a self-authored statement, a letter to the
President of the United States, and his DD Form 214 (Certificate of Release
or Discharge From Active Duty) which was issued at the time of his transfer
to the Retired Reserve on 30 September 2003 in support of this application.


CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that he was a member of the Army National
Guard when he was ordered to active duty in support of Operation Noble
Eagle from 1 October 2001 to 23 September 2002.  He was also ordered to
active duty in support of Operation Enduring Freedom from 24 September 2002
to
9 February 2003, and again from 10 February 2003 to 30 September 2003.

2.  In his letter to the President of the United States, the applicant
essentially detailed how increased operational tempo, especially after 11
September 2001, caused leave cancellations and unit mobilizations.  He
continued by stating that on at least two occasions, his chain of command
approved leave, but that he would have taken many more days of leave had he
been permitted to do so.  The applicant did not provide any evidence which
shows that his chain of command disapproved any of his leave or reduced the
amount of leave he requested.

3.  The applicant also essentially stated that at the time of his discharge
from the Army National Guard and transfer to the Retired Reserve, he had
accrued approximately 100 days of leave.  He continued by stating that he
was only paid for 60 days of his unused leave.  The applicant essentially
said that, regardless of Army policy, if a Soldier is permitted to carry
more than 60 days leave, but is prohibited from taking more than a few days
here and there, he or she should be paid for them.  He further stated that
he firmly believes the Army owes him the money for the approximately 40
days of unused leave that remained after he was paid for 60 days of leave.

4.  The applicant’s leave and earning statement for the period 1 to 30
September 2003 shows, in pertinent part, that he had a leave balance of 99
days.  Information from the Defense Finance and Accounting Service (DFAS)
also shows that he was paid for 60 days leave at the time of his separation
on
30 September 2003.

5.  Army Regulation 600-8-10 (Leaves and Passes) provides regulatory
guidance of the leave and pass program.  Paragraph 2-2 of this regulation
states, in pertinent part, that Commanders will establish an annual leave
program to manage leave designed to provide:

      a.  the maximum opportunity for all Soldiers to take leave to minimize
loss and payment of leave not taken.


      b.  A caution to Soldiers who do not take leave, that they may lose
leave at the end of the fiscal year (FY).  Also, Soldiers who maintain a 60-
day leave balance, and wait late in the FY to take leave, will be informed
that they risk loss of leave over 60 days if the operational situation
requires their presence.


      c.  Allowable leave within the constraints of operational military
requirements and to the degree of support for leave provided in the unit
manning document.

6.  Paragraph 2-4 of Army Regulation 600-8-10 (Leaves and Passes) provides
regulatory guidance on the payment of accrued leave.  It states, in
pertinent part, that by law, payment of accrued leave is limited to 60 days
one time during a military career.  However, paragraph 2-4d of this same
regulation clarifies the conditions in which a member of a Reserve
Component may be paid for leave accrued while serving on active duty in
support of a contingency operation.  It states that, “payment of accrued
leave is made per section 501(b), Title 37, United States Code (37 USC §
501[b][5]) for leave earned by a Soldier of a Reserve Component, retired
Reserve, or retired member of the Regular Army while serving on active duty
in support of a contingency operation.  By law, payment of accrued leave is
limited to 60 days one time during a military career, unless earned under
this paragraph.”




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be paid for the balance of
approximately 40 days leave that he lost after he was paid for 60 of the
approximate 100 days of leave he had at the time of his transfer to the
Retired Reserve on 30 September 2003.

2.  The applicant’s contention that increased operational tempo caused
leave cancellations and unit mobilizations, and that on at least two
occasions, his chain of command approved leave, but that he would have
taken many more days of leave had he been permitted to do so was noted.
However, the applicant did not provide any evidence which showed that his
chain of command disapproved any of his requests for leave, or reduced the
amount of leave he requested.

3.  The fact that the applicant knew or should have known that Soldiers who
maintain a 60-day leave balance, and wait late in the FY to take leave,
risk loss of leave over 60 days if the operational situation requires their
presence was also noted.  However, the applicant, by virtue of accruing his
leave as a member of Reserve Component serving on active duty in support of
contingency operations, is entitled by law to payment of the remainder of
his leave balance in excess of 60 days which he had accrued as of 30
September 2003.

4.  Evidence of record clearly shows that the applicant earned leave in
excess of 60 days as a member of a Reserve Component while serving on
active duty in support of Operation Noble Eagle, which was a contingency
operation, and Operation Enduring Freedom, which was and still is a current
contingency operation.  Therefore, he is entitled to payment of the
remaining balance of his leave account as of 30 September 2003 in excess of
60 days.  Records provided by DFAS indicate that the applicant was not paid
for 39 days of leave.  Contingent on DFAS confirming that all of the
applicant’s periods of leave have been processed, the applicant appears to
be entitled to payment of 39 additional days of leave originally lost at
the time of his transfer to the Retired Reserve on 30 September 2003.









BOARD VOTE:

__JR____  ___RS  _  ___DT___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
entitling him to payment of his leave balance on 30 September 2003 that was
in excess of 60 days.  Subject to DFAS confirmation that the applicant lost
39 days of leave when he was transferred to the Retired Reserve, the
applicant is entitled to payment of 39 days leave.




                                  ____ Jeffrey Redmann____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000805                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061116                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |20030930                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 4                        |
|DISCHARGE REASON        |REFRAD                                  |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.       |128.1400.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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