RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070005093 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward Montgomery

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 her finance records be corrected to show reinstatement of 23.5 days leave.

2.  The applicant states, in effect, that she received her retirement orders in March 2006 and submitted her retirement through her chain of command which was approved.  She states, "When I received my retirement briefing from finance I spoke with Ms. H______ about my leave date.  I explained to her that I had been back from the war for two years and I had until Oct.207 (sic) to use 78.5 days that was combat zone carryover, and that I could use them together and transition out of the Army." 

3.  The applicant continues that, two days prior to signing out on permissive temporary duty (PTDY), she was informed by her First Sergeant and Personnel Administration Center (PAC) Noncommissioned Officer in Charge (NCOIC) that she would lose 23.5 days of leave based on the number of carryover leave days at the end of the fiscal year (FY).  She states that her PAC NCOIC accused her of submitting fraudulent documents to her Brigade Commander for signature and that her Brigade Commander told her that this was her error and that she was an E-8 and should have known better.  They informed her that she needed to take leave the last two weeks of September 2006.
 
4.  The applicant further states that she sought assistance and the Post Sergeant Major (SGM) referred her to the Defense Finance and Accounting Service (DFAS) and the Post Inspector General (IG).  She submitted a complaint to the Post IG, and they only filed and closed her case without talking to the Brigade Commander.  The applicant concludes that, had she been properly informed by her Personnel Services Battalion (PSB) NCOIC and retirement personnel that she would have to take 23.5 days leave prior to her retirement, she would have.

5.  The applicant provides a DA Form 4187 (Personnel Action), dated 29 January 2006; three DA Forms 31 (Request and Authority for Leave); and an email message from DFAS, dated 20 October 2006. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 January 1981.  She was deployed to Iraq in support of Operation Iraqi Freedom.  The applicant departed the combat zone in April 2004 and was authorized combat zone carryover leave.


2.  A DA Form 4187, dated 29 January 2006, shows that the applicant's request for voluntary retirement to be effective 1 February 2007 was approved by her commander and that her transition leave would take effect 16 October 
2006 through 31 January 2007.

3.  Headquarters, United States Army Aviation Center and Fort Rucker Orders 072-0504, dated 13 March 2006, show the applicant's effective date of retirement as 31 January 2007 and date placed on the retirement list as 1 February 2007.

4.  The applicant requested and was approved for annual leave from 
18 September 2006 through 29 September 2006 for a total of 12 days.

5.  A DFAS Military Leave and Earnings Statement for the period 1 through 
30 September 2006 shows the applicant had a current leave balance of 
114 days which included a combat zone carryover leave balance of 78.5 days. 

6.  The applicant provided an email message addressed to her from a DFAS Sergeant Major (SGM), dated 20 October 2006.  The SGM stated, in effect, his IG agreed with his interpretation that the personnel/retirement section should not have approved her retirement because the number of transition leave days she requested would have her in a negative leave balance at retirement.  

7.  The SGM further stated "As of 30 Sep, you could carry over 78.5 days (this includes your 60 days normal plus your special leave accrual balance) plus you would earn 2.5 days per month up to your retirement month.  So if you wanted to retire 1 Feb, you would have 88.5 days and your transition leave should have started 5 Nov.  Personnel should have calculated this and instructed you to take the 24 days leave prior to 30 Sep."

8.  Headquarters, United States Army Aviation Center and Fort Rucker Orders 340-0520, dated 6 December 2006, amended Orders 072-0504, dated 13 March 2006.  The orders show that the applicant's effective date of retirement was changed to 28 February 2007 and her date placed on the retirement list was changed to 1 March 2007.

9.  In the processing of this case an advisory opinion was obtained from the Department of the Army, United States Army Human Resources Command.  The advisory opinion recommended disapproval and noted that a review of the applicant's finance records show she requested and used 148 days leave from FY 2004 through FY 2007 and at the time of her retirement her leave was 
28 days.  It further indicated that the applicant requested and cashed in 30 days leave and that she may have been overpaid 2 days leave.  

10.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She stated, in effect, that she did not dispute any leave dates depicted by the advisory opinion.  Her concerns were of the actions of the chain of command leading up to the loss of her leave.  She further stated that her command led her to believe that her retirement packet was correct in accordance with regulatory guidelines.  Her command told her that she would lose her leave and that she was a senior NCO and should have known she could not carry over her leave.

11.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) states, in pertinent part, that Soldiers are responsible for reviewing their LES.

12.  The Department of Defense Financial Management Regulation (DODFMR) provides that effective 10 February 1976, a military member is entitled to receive payment for no more than 60 days of accrued leave during a military career. 

13.  Title 10, United States Code, section 1201, provides instructions for special leave accrual.  Soldiers who serve in a hostile fire/imminent danger area for a continuous period of 120 days or greater may be authorized to retain and accumulate up to 120 days leave, after serving in an area in which they are entitled to hostile fire or imminent danger pay under Title 37, United States Code, section 310.  Leave in excess of 60 days accumulated under this provision is lost if not used by the Soldier before the end of the third fiscal year after fiscal year in which the continuous period of service terminated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her finance records should be corrected to show reinstatement of 23.5 days leave.  However, her LES for September 2006 shows that she had a leave balance of 114 days and a combat zone carryover leave balance of 78.5 days.  That gave her 18.5 days over the 60 day maximum she could carry over at the end of FY 2006 that was protected.  This meant that the applicant had to take 23 days leave prior to the end of FY 2006.

2.  It appears the applicant's command became aware that she would lose 
23.5 days leave and the solution was for her to take as many days leave as possible before the end of FY 2006.

3.  The applicant contends that she was not properly advised by her PAC NCOIC and retirement personnel to take the 23.5 days prior to 30 September 2006.  However, it was her responsibility to manage her leave and she should have been aware that she could not carry over more that 78.5 days leave by the end of FY 2006.  Therefore, there is no basis to grant this request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KAN __  __RML  _  ___EM __  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.





__Kathleen A. Newman_
          CHAIRPERSON




INDEX

CASE ID
AR20070005093
SUFFIX

RECON

DATE BOARDED
6 DECEMBER 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
121.0300.0000
2.

3.

4.

5.

6.