RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 November 2006
      DOCKET NUMBER:  AR20060014344


      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             |
|     |Ms. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |Member               |
|     |Mr. David W. 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 allowed to take his
accrued leave, of 58.5 days.

2.  The applicant states, in effect, that he was not allowed to use his
leave prior to his ETS.  He was not allowed to take terminal leave or to
use his leave due to the nature of the mission.  He is now requesting an
exception to the statute to use his 58.5 days of accrued leave.

3.  The applicant provides a copy of his DA Form 2139 (Military Pay
Voucher) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 21 June
1977.  The applicant successfully completed basic combat training at Fort
Jackson, South Carolina, and advanced individual training at Lee, Virginia.
 On completion of his advanced training, he was awarded the military
occupational specialty (MOS), 76Y, Supply Specialist.  He was promoted to
sergeant (SGT/E-5) effective 1 December 1979.  He continued to serve until
he was honorably discharged on 24 April 1980, for immediate reenlistment.

2.  The applicant reenlisted on 25 April 1980, for 3 years, with an ETS of
24 April 1983.

3.  The applicant enlisted in the USAR on 15 April 1983, for 3 years, in
pay grade E-5.

4.  The applicant continued to serve in the Regular Army until he was
honorably released from AD on 24 April 1983.  He was transferred to the
USAR Control Group (Reinforcement).

5.  The applicant provides a copy of his DA Form 2139, with a "Paid By"
date of 26 April 1983, which shows that he had an accrued leave balance of
58.5, at the time of his ETS.  Item 11 (Remarks), of the DA Form 2139,
shows he was paid for 60 days of accrued leave on 28 April 1980, 3 days
after his immediate reenlistment.

6.  The applicant's Summary of Retirement Points shows that he is currently
a member of the USAR and served on active duty in support of Operation
Noble  Eagle for the period from 6 June 2004 through 24 June 2005.
7.  The applicant was promoted to master sergeant (MSG/E-8) effective
1 November 2004.  On his release from AD, he was transferred to the USAR
Control Group (IMA [Individual Mobilization Augmentee]).

8.  The applicant's record contains a copy of a memorandum from the Chief,
Personnel Service Support Division, U.S. Army Human Resources Command
(AHRC)-Alexandria to a Member of Congress, dated August 14, 2006, regarding
the applicant's loss of 58.5 days leave.  AHRC informed the Congressman
that the Army Leave and Pass program is applicable to all members of the
Active Army, the Army National Guard, and the USAR when serving on AD for
30 consecutive days, and entitled to pay.  The leave program is designed to
allow Soldiers the opportunity to use their accrued leave to the maximum
extent possible and minimize the loss of leave.  Leave is to be granted
within the constraints of operational military requirements. When
operational and mission requirements prevent the use of accrued leave prior
to separation, commanders are encouraged to authorize Soldiers the
opportunity to use a portion of the accrued leave and "cash in" the
remaining leave.

9.  AHRC states that as prescribed by the Department of Defense Financial
Management Regulation (DODFMR) 7000.14R, Chapter 35, a Soldier discharged
under honorable conditions is entitled to payment of unused accrued leave,
unless the Soldier continues on AD under conditions that required accrued
leave to be carried forward to the new contract period of AD.  Soldiers
discharged from the service and immediately ordered to AD without a break
in service may elect to be paid for unused leave or may elect to carry
forward unused leave into the new AD period.  As of 10 February 1976, a
Soldier is entitled to receive payment for no more than 60 days of accrued
leave during a military career.

10.  AHRC states that the applicant informed their office that he had
previously sold 60 days leave during his military career, thereby making
him ineligible to cash in the 58.5 days leave at his ETS.  In order for the
applicant to retain the remaining 58.5 days accrued leave, he would have
had to immediately reenter AD, without a break in service.  The applicant
separated in April 1983 and did not come back onto AD until June 2005
(sic), thereby making him ineligible to carry forward the accrued unused
leave.  There is no authority under Army Regulation, DOD Instruction (DODI)
1327.6 (Leave and Liberty) or the DODFMR to grant an exception to statute.
AHRC recommended that he submit a second request for relief to this Board.


11.  Army Regulation 600-8-10 (Leave and Passes) covers leave and pass
programs.  It prescribes polices, operating tasks, and steps governing
military personnel absences.  Chapter 2 pertains to policy for leave.
Paragraph 2-3 states, in pertinent part, that Soldiers on active duty earn
30 days of leave a year with pay and allowances at the rate of 2 1/2 days a
month.  Soldiers may accrue and carry forward up to 60 days leave at the
end of each FY (fiscal year).  Accrued leave that exceeds 60 days at the
end of the FY is lost.

12.  Paragraph 4-21, transition leave (formerly called terminal leave) is a
chargeable leave granted together with transition from service, including
retirement.  Leave will not be granted if it exceeds that accrued or to be
accrued between the date of approval and date of transition.  It does not
provide a Soldier additional accrued leave.  It only allows a Soldier to
use accrued leave in greater quantity at the time of transition from the
Army than might otherwise be granted.
It also states that Soldiers could sell or cash in no more than 60 days of
leave during their military career.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had 58.5 days of accrued
leave at the time of his ETS, 24 April 1983, and had sold 60 days of leave
on 28 April 1980, 3 days after his immediate reenlistment.

2.  At the time of his reenlistment, the applicant should have been
informed that he was only entitled to receive payment for no more than 60
days of accrued leave during a military career and that this policy had
been in effect since 10 February 1976.  Prior to his ETS, he should have
been informed that he must use or lose his accrued leave of 58.5 days.  He
was entitled to take terminal leave prior to his ETS unless prevented by
operational or mission requirements.

3.  The applicant separated from AD in April 1983 and returned to AD on
6 June 2004, 21 years later, thereby making him ineligible to carry forward
the accrued unused leave of 58.5 days.  Therefore, he is not allowed to use
his past accrued leave, of 58.5 days nor is he eligible to cash in this
leave which was lost on his ETS in 1983.

4.  The applicant alleges that he was not allowed to take terminal leave at
the time of his ETS, in April 1983, due to the nature of the mission.
However, there is no evidence, and the applicant has provided none, to
support his allegation.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JCR ___  __DWT__  __RWS__  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.




                                  _____Jeffrey C. Redmann____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014322                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061116                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |121                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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