RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 March 2007
      DOCKET NUMBER:  AR20060008374


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Roland S. Venable             |     |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 records be corrected to show he does
not owe the Government a debt [due to taking excess leave].

2.  The applicant states he originally had orders to retire on 31 July
2003.  Those orders were revoked in February 2003 due to Stop Loss.  He was
placed on alert status with the 1st Battalion, 160th Special Operations
Airborne Regiment and could not take leave.  Stop Loss was lifted in June
of 2003, and he was placed on orders to retire in January 2004.  He had 124
days of leave accrued, and he was granted 20 days permissive temporary duty
(TDY).  His leave request was routed through four agencies for approval.
His company commander, his personnel officer, his battalion commander, and
his personnel services battalion had to approve his leave before he could
start out-processing.  It was not until he requested a copy of his W-2 that
he discovered there was a problem with his leave.

3.  The applicant provides his leave and earnings statements from January
2003 through September 2004; his original retirement orders; and the orders
revoking his original retirement orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Enduring Freedom.

2.  The applicant enlisted in the Regular Army on 8 July 1981.  He was
promoted to Sergeant First Class, E-7 on 1 June 1998.

3.  Headquarters, 101st Airborne Division Orders 221-0003, dated 9 August
2002, released the applicant from active duty effective 31 July 2003 for
the purpose of retirement.  These orders were revoked on 24 March 2003.

4.  On 21 May 2003, the applicant requested 144 days (124 days leave and
     20 days permissive TDY) transition leave to start on 9 September 2003.

5.  Headquarters, 101st Airborne Division Orders 221-0003, dated 14 June
2003, released the applicant from active duty effective 31 January 2004 for
the purpose of retirement.

6.  On 9 September 2003, the applicant signed out on transition leave.

7.  According to a 7 March 2007 email from the Defense Finance and
Accounting Service – Denver Center (DFAS-DE), on 1 October 2003 the
applicant lost        49 days of leave due to the maximum carry forward
limit of 60 days.

8.  On 31 January 2004, the applicant was released from active duty and
placed on the retired list 1 February 2004.

9.  Because of the leave he lost at the end of fiscal year 2003, DFAS
charged the applicant with a debt due to excess leave for the period 3
through 31 January 2004 (after he was credited with 20 days authorized
leave accrual for the year 2002).

10.  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 noted that the governing regulation cautions
Soldiers who maintain a 60-day leave balance that they risk loss of leave
over 60 days if the operational situation prevents them from taking leave
before the end of the fiscal year.  That office noted that it appears the
applicant’s scheduled terminal leave/retirement date was impacted by such
an operational situation and issuance of an Army Stop Loss/Stop Movement
military personnel message, resulting in loss of accrued leave and debt to
the Government.

11.  The advisory opinion noted that it would not be appropriate to re-
credit the applicant’s accrued leave balance for lost leave as a result of
the Army Stop Loss message; however, a more appropriate action would be
approval of his DD Form 2789 (Waiver/Remission of Indebtedness
Application), since he stated he was not aware of a problem until after he
requested a W-2 form.  Had the applicant known that he had lost 49 days of
leave at the end of the fiscal year, he most likely would have adjusted his
terminal leave dates to prevent going into an excess leave balance at his
final retirement out-processing.

12.  A copy of the advisory opinion was provided to the applicant for
comment.  He, in effect, concurred with the recommendation.

13.  Army Regulation 600-8-10 (Leaves and Passes), paragraph 2-2a states
the leave and pass program is designed to allow Soldiers to use their
authorized leave to the maximum extent possible.  Paragraph 2-2b(2) states
Soldiers are cautioned that if they do not take leave they may lose leave
at the end of the fiscal year.  Also, Soldiers who maintain a 60-day leave
balance, and wait until late in the fiscal year to take leave, will be
informed that they risk loss of leave over 60 days if the operational
situation requires their presence.

14.  Army Regulation 600-8-10, paragraph 2-3c states that, except when
authorized special leave accrual (i.e., during actual deployment), Soldiers
may accrue and carry forward up to 60 days leave at the end of each fiscal
year.  Paragraph 2-3d states accrued leave that exceeds 60 days at the end
of the fiscal year is lost.

15.  The Fiscal Year 2007 National Defense Authorization Act expanded the
Secretary of the Army’s authority to cancel or remit a debt incurred by a
person while serving on active duty since 7 October 2001 when to do so is
in the best interest of the United States.  This authority is to be
exercised pursuant not regulations prescribed by the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s original retirement orders were revoked in February
2003 due to Stop Loss.  At the same time, he states was placed on alert
status with the 1st Battalion, 160th Special Operations Airborne Regiment
and could not take leave.

2.  The applicant’s situation was not the same envisioned by the governing
regulation, which cautions Soldiers who maintain a 60-day leave balance and
wait until late in the fiscal year to take leave that they risk loss of
leave over      60 days if the operational situation requires their
presence.  The applicant was prevented from taking leave due to operational
requirements early in the fiscal year, not late in the fiscal year.

3.  The factors of Stop Loss and special leave accrual could have been
confusing.  Although the applicant was prevented from taking leave due to
operational considerations, he was not authorized special leave accrual
since he did not actually deploy.  However, it appears that not only the
applicant but also his commanders and his servicing personnel officials may
have believed he was authorized special leave accrual.

4.  On 21 May 2003, the applicant requested 124 days of leave, to start on
        9 September 2003.  Someone should have caught the fact that if he
had         124 days of leave on 9 September 2003, and then took 23 of
those days as of     30 September 2003, he would have had well over the
maximum carryover amount of 60 days as of 1 October 2003.  Arrangements
could possibly then have been made for him to take the excess leave over
the summer.  The applicant should not be penalized for something it appears
his commanders and personnel officials were not aware of.

5.  Since the applicant’s debt was incurred while he was still serving on
active duty (excess leave from 3 through 31 January 2004) his debt could
have been remitted by the Secretary of the Army under the Secretary’s
authority as expanded by the Fiscal Year 2007 National Defense
Authorization Act.  It would be equitable to show that the applicant
applied for remission of this debt in a timely manner and that the
appropriate office approved remission of the entire debt due to excess
leave.

BOARD VOTE:

__lds___  __jtm___  __rsv___  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
showing that he applied for remission of his debt due to excess leave in a
timely manner and that the appropriate office approved remission of the
entire debt due to excess leave.




                                  __Linda S. Simmons__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008374                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070322                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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