RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 November 2007
	DOCKET NUMBER:  AR20070005658 


	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

MS. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Donald Lewy

Member

Ms. Rea Nuppenau

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, restoration and payment of 19 days leave that were lost when he began his terminal leave on 29 September 2006. 

2.  The applicant states, in effect, that when he retired he knew that he could not carry over more than 60 days of leave into the new fiscal year; however, Army Regulations and Federal law, Title 37, Unites States Code (USC) 501, did not specify that leave days are apparently sold at the end of the terminal leave period.  When he began his terminal leave on 29 September 2006, he believed that he could make a one-time sale of leave of 41 days.  Instead, he was informed that he lost 19 days of leave and was permitted to sell only 22 days. 

3.  The applicant provides an additional statement.  He states, in effect, that the 19 leave days that were lost were earned by him and he believes that he should be entitled to benefit from such accrued leave.  The confusion created by numerous inaccurate explanations by finance personnel as to his loss of leave and the lack of appropriate regulatory guidance warrants correction of his records.  He has sought administrative relief through the Army G1 but was not provided any such relief.   

4.  He described the events that occurred prior to, during, and after his retirement regarding his loss of leave.  He is seeking assistance in resolving the loss of his earned leave.

5.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), several copies of his LES (Leave and Earnings Statement), several copies of emails, and copies of two memorandums, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was commissioned as a second lieutenant (2LT/O-1) on 25 May 1983.  He was promoted to lieutenant colonel (LTC/O-5) effective 1 August 1999.  

2.  The applicant was approved for retirement effective 30 November 2006.




3.  On 5 June 2006, the applicant was approved for permissive TDY (temporary duty) from 16 June to 24 June 2006, 9 days, for the purpose of house-hunting trip in connection with retirement from active duty and, from 30 September to 10 October 2006, 11 days also for the purpose of house hunting.

4.  On 3 August 2006, the applicant was approved for 51 days of transition leave from 11 October 2006 to 30 November 2006.

5.  The applicant’s September 2006 LES, prior to his departure on transition leave, shows that he had a balance of 87 days of accrued leave, lost 7 days, and 27 days of use/lose leave.  It also shows that he brought forward a total of 68 days of accrued leave from fiscal year (FY) 2005.  During FY 2006, he earned 30 days leave from 1 October 2005 to 30 September 2006, for a total of 98 days, and had used 11 days leave.

6.  The applicant's October 2006 LES shows that he had a balance of 49.5 days of accrued leave, lost 19 days, and 17 use/lose leave.

7.  On 7 November 2006, the applicant prepared a memorandum for the Finance Officer, Fort Myer, Virginia, Subject:  Loss of Accrued Leave at Retirement.  He stated that he recently completed final outprocessing at Fort Myer in relation to his retirement.  He had elected to remain on active duty based upon the needs of his office at the U. S. Army Litigation Division and the fact that he could not begin work at this current place of employment until mid-October.  When he reported for his "final out" on 29 September 2006, he had 87 days of accrued leave.  He planned to take 10 days permissive TDY (temporary duty) for house hunting and to then take terminal leave through 30 November 2006.  This amounted to 51 days of terminal leave.  He then planned to cash in all remaining leave.  However, when he reported to finance, he was informed that he would lose 19 days of leave and was only permitted to cash in 22 days of leave.

8.  He states, obviously losing 19 days of leave was entirely unexpected and he was extremely unhappy with this result.  He asked the finance clerk to provide a basis and was told that it was due to his combat leave carryover.  Unfortunately, all she could provide was a brief print out regarding the loss of his 19 days of leave.  Shortly thereafter he submitted his concerns to the Fort Myer Interactive Customer Evaluation (ICE) site and has not yet received any response.  After recently completing another ICE posting, he elected to prepare this memorandum.


9.  He requested a thorough review of his leave entitlements pertaining to his retirement.  Specifically, he requested a detailed explanation in writing as to how he could lose so many days of leave and what regulatory basis accounts for this loss of leave.  To assist finance, he enclosed copies of his September and October LESs and the computer printout that he received during outprocessing.

10.  The applicant served until he was separated for the purpose of retirement on 30 November 2006.  He was placed on the Retired List effective 1 December 2006, in the rank and pay grade of LTC/O-5.  

11.  The applicant provided a copy of his LES, dated 30 November 2006, which shows that he was paid 22 days leave in the amount of $5290.56.

12.  On 21 December 2006, the applicant sent an email to the Chief, Military Operations, DMPO-NCR (Defense Military Pay Office-National Capital Region), Fort Myer, Subject:  Loss of Leave Upon Retirement.  He informed the supervisor, MPO (Military Pay Operations), that he had hand carried a memorandum to the Fort Myer Finance Office seeking an explanation as to why he lost 19 days of leave.  He received no response to his inquiry.  He returned to the office and was informed by finance personnel that he should contact the DMPO-NCR for a more detailed explanation of his leave loss.

13.  On that same date, the supervisor, MPO, DMPO-NCR, responded by email. The applicant was informed that the supervisor would need to perform a leave audit of his active duty pay account.  If any SLAs (Special Leave Accrual) were restored to his account, they could not be given back as a monetary payment.  The supervisor would research this for any exceptions to policy.  Once the audit was completed, he would be emailed or called with the results.

14.  On 22 January 2007, through email, the supervisor, MPO, DMPO-NCR, attached a leave audit for the applicant's review.  He was informed that based on his deployment from 6 August 2003 through 12 February 2004, he was entitled to carry forward 68 days each fiscal year until September 2007.  For fiscal years (FY) 2005 and 2006, he lost all leave days in excess of 68.  The same transactions took place at the beginning of FY 2007 (1 October 2006) which resulted in a loss of 19 days.  As of October 2006, his leave balance was 70.5 and he accrued an additional 2.5 days for November 2006 [equated to – 73 days].  Upon completing 51 days of terminal leave, he was paid the remaining balance of 22 days as part of his final active duty pay.  All leave days were exhausted; there were no remaining leave days to be paid.

15.  On that same date, the applicant responded to the supervisor.  He stated that despite their efforts, he was not understanding why he lost so much leave.  He had a detailed letter provided for their consideration.  He expected to pursue this matter further and wanted to maintain some level of official correspondence to this matter and was unable to insert a table into the body of an email.  He inquired about one comment of their chart that stood out and could perhaps help him understand how this worked.  That comment was that leave was charged, "last in first out (LIFO)."  He elaborated on the use of LIFO formula and the effect it would have on the accrual and use of leave earned while a Soldier was in a combat zone.  

16.  He states that it seemed to him that a program that was designed to protect Soldiers from losing leave was actually causing them to lose leave. This was certainly true in his case where he had now lost 30 days of leave to protect 15 and found this whole matter troubling.  This issue was not being explained to Soldiers and he had never seen this issue addressed in detail nor was it addressed at the retirement and presumably ETS (expiration of term of service) briefing.

17.  On 23 January 2007, the supervisor, MPO, DMPO-NCR, informed the applicant, by email, that SLA board reviews or exceptions were reviewed by Army G1.

18.  On 1 February 2007, the applicant prepared a memorandum for the G1, Subject:  Loss of Accrued Leave at Retirement.  He requested an exception to policy to have 19 days of leave restored and paid out to him in cash as part of his recent retirement from active duty.  He stated, in effect, that he believed that the policies of combat zone leave carryover or SLA which related to his service in Afghanistan had an unintended consequence of causing him to lose more leave than was ever protected. 

19.  On 29 September 2006, he added, he reported to Fort Myer to conduct final out-processing in relation to his retirement.  He had elected to remain on active duty based upon the needs of his office at the U.S. Army Litigation Division and the fact that he could not begin to work at his current place of employment until mid-October.  When he reported for his "final out" on 29 September 2006, he had 87 days of accrued leave.  He planned to take 10 days of permissive TDY for house hunting and then take terminal leave through 30 November 2006, which amounted to 51 days of terminal leave, inclusive of 5 days of leave earned during October and November 2006.  He then planned to cash in all remaining leave totaling 41 days.  However, finance informed him that he would lose 19 days of leave and was only permitted to cash in 22 days of leave.
20.  He continues to elaborate on events previously discussed.  He provided a chart for review. 

Fiscal Yr
Beg. Bal
Earned
Used	
Lost
End. Bal
w/o SLA
FY 03	
60
30
22
0
68
-8
FY 04
68
30
26
4
68
-4
FY 05	
68
30
27
7
68
-3
FY 06
68
30
11
19
68
0
FY 07	
68
5
51
 0(tot 20)
0
0 (tot 15)

21.  He stated that he did not believe it was the intent of Army Regulations to convert all previously earned leave into "protected leave" that could be cashed in. He stated that while this may only impact those individuals who are retiring or leaving active duty at the end of the fiscal year, he relied entirely upon his LES that reflected a credit balance of 87 days leave at the time of his retirement as a basis for my intended leave usage.   

22.  On 1 February 2007, the applicant sent an email to the G1, with an attachment of his memorandum, dated 1 February 2007.  He informed GI that he was referred to them by the supervisor, MPO, DMPO-NCR.  He stated that if the G1 did not have the authority to grant an exception to policy as requested please provide him with an appropriate point of contact.

23.  On that same date, the G1 replied by email.  The G1 stated that without additional information they were unable to figure out exactly what transpired or why the applicant lost X-days of leave at his "final out."  The G1 provided him the rules and statutory authority for SLA.  The G1 stated that they would also do an informal calculation of his leave balances based on the leave and pass policy contained in Army Regulation 600-8-10 and the dates and leave balances contained in his memorandum; however, the G1 did not believe that SLA would/could work to his detriment.

24.  The G1 elaborated on the regulatory authorities regarding SLA and regular leave.  The G1 concluded by stating that he could not have carried an 87-day leave balance into FY07 (1 October 2006) to use as terminal leave, unless all 27 days annual leave over the normal 60 day leave carryover balance were all SLA, which they could not have been since he was in Afghanistan for only         5-6 months.  The G1 deferred the applicant's case to Fort Belvoir for "final out" calculations with better information.  


25.  By email, the applicant thanked the GI for their detailed explanation.  He added that he suspected that an error had crept into his pay record which could account for the confusion.  In his reply, he provided additional facts which might help explain his loss of leave. 

26.  On 5 February 2007, the G1 reviewed the follow-up information provided by the applicant as well as the spread sheet of his leave audit.  G1 stated that unless he could show that an error occurred, they had no reason to believe it was not correct, and saw no error that stood out.  G1 once again elaborated on information previously provided.  G1 concluded that they would be happy to assist him if he could document where an error occurred or the leave audit was incorrect.  

27.  On that same day, by email, the applicant informed G1 that he was confused by their reply.  He again pointed out some information he felt would clarify his entitlement and his loss.

28.  On 5 February 2007, the G1 replied to the applicant's question, "Can a Soldier without any SLA and with a leave balance of 87 days retire on 30 September and cash in 31 days of leave on 30 September and go into transition leave for the remainder of October and November"?  The answer was, no.  He could not retire on 30 September 2006 and then take terminal leave in October/November 2006.  His last day on active duty was his retirement date, regardless when he did his "final out."  

29.  G1 concluded that finance was correct and his misunderstanding of existing Army leave and pass policy resulted in his loss of leave at final outprocessing in September 2006.  G1 reiterated that once again they would be happy to assist him if he could document where an error or leave audit was incorrect. 

30.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  The regulation indicates that leave and pass is designed to allow Soldiers to use their authorized leave to the maximum extent possible.  
The leave regulation also specifies that in pursuing the maximum use of leave, commanders must place emphasis on granting leave to allow use of leave prior to separation and that it is not the intent of the leave policy that large leave balances be accrued expressly for settlement upon a Soldier's release from active duty.  


31.  Paragraph 2-3 (leave accrual) states, in pertinent part, that except when authorized special leave accrual, Soldiers may accrue and carry forward up to 60 days leave at the end of each fiscal year.  Further, accrued leave that exceeds 60 days at the end of the fiscal year is lost except as authorized under special provisions.  

32.  Paragraph 2-4 (Payment of Accrued Leave) indicates that payment of accrued leave is made under the provisions of the Department of Defense Pay Manual and that by law, payment of accrued leave is limited to 60 days one time during a military career, unless earned under special accrual provisions.

33.  Chapter 3 (special leave accrual) indicates that the intent of special leave accrual is to provide relief to Soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility.  Transition leave is not defined as a situation that qualifies for special leave accrual. 

34.  Paragraph 3-1 (Concept) states, in pertinent part, that the leave program is designed to encourage the use of leave as it accrues rather than to accumulate a large leave balance.  Soldiers who build their leave balance to the maximum level risk losing their leave should a situation occur that prevents or delays leave use. 

35.  Department of Defense (DOD) Financial Management Regulation, Volume Chapter 35, paragraph 350102, subparagraph A, pertains to leave accounting.  It states that accrued leave must be carefully accounted for and accurately identified to the time and circumstances under which it was earned.  The number of days accrued and value of unused leave that is to be sold depends upon the timeframe and circumstances under which it was earned.   

36.  Paragraph 350102, subparagraph B, states that leave accrues to a service member on active duty for 30 days or more.  It is accrued at the rate of 2 ½ days for each month of active service, excluding periods of absence from duty without or over leave, periods of confinement resulting from courts-martial and period of leave required to be taken pending review of court-martial conviction.  For partial months, it accrues at the rate of ½ day for any period of 6 or less days.  A member may not carry forward a leave balance of more than 60 days into a new fiscal year, except when entitled to SLA.  




37.  Subparagraph 350102B(1) states that a member who serves on active duty while entitled to hostile fire/imminent danger pay for a continuous period of at least 120 days may carry forward up to 90 days of leave into the new fiscal year. Under this exemption, unused leave may be carried forward until the end of the third fiscal year following the fiscal year in which the service in the qualifying hostile fire/imminent danger area is terminated

38.  Subparagraph 350101B(3) states that the maximum amount of leave that may be carried forward into succeeding fiscal years is the leave balance (not to exceed 90 days) as of the end of the SLA period.  However, the maximum amount will be reduced to a new level whenever the leave balance drops below the previously set level.  If at any time, the leave balance drops to or goes below 60 days, there is no longer any SLA protected leave.  Therefore, the actual maximum leave that can be carried forward into succeeding fiscal years is the lowest leave balance achieved following the completion of the SLA duty or the usual 60 days, whichever is greater.  If the SLA qualifying period crosses a fiscal year, the entire leave balance (not to exceed 90 days) would be carried forward and the leave accrued from the beginning of the new fiscal year through the end of the SLA qualifying period would be added to establish the maximum.  Notwithstanding the above, any portion of a leave balance in excess of 60 days which could have been taken before the end of the fiscal year, had the member been assigned to SLA qualifying duty, would not be included in the carry over amount.

DISCUSSION AND CONCLUSIONS:

1.  The applicant applied for and was approved for retirement with an effective date of 30 November 2006.  He was approved for a total of 20 days permissive TDY and 51 days of terminal leave. 

2.  The applicant reported for his final outprocessing on 29 September 2006, one day prior to the end of the FY 2006, with a balance of 87 days of accrued leave and 27 days of use/lose leave.  It is noted that he would accrue 2.5 days of leave for the months of October and November 2006, FY 2007, which would give him a total of 92 days.  He believed he could make a one-time sale of leave of 41 days. On outprocessing, he learned he could only sell back 22 days and, at the end of the FY 2006 he lost 19 days.

3.  The applicant queried finance representative at all levels and presented his request to the Army G1, the authority having the final authority to grant an exception and to restore his lost 19 days of leave.  
4.  Normally, an individual can carry over only 60 days from one FY to another; however, in accordance with financial management regulations and as a result of his deployment to Afghanistan, the applicant had the authority to carry over 68 days annual leave from one FY to another.  This authority was to expire at the end of September 2007.

5.  The applicant's LES for the period 1-30 September 2006 shows he had 87 days accrued leave on the final date of the fiscal year.  On 1 October 2006, he lost 19 days because he was only authorized to carry 68 days over from one fiscal year to the next.

6.  From 1 October to 30 November 2006, the applicant accrued 5 days leave bringing his total to 73 days.  He was authorized to take and took 51 days transition leave leaving a balance of 22 days which he sold back to the Government.

7.  In view of the circumstances in this case, the applicant is not entitled to restoration and payment of 19 days leave that were lost when he began his terminal leave on 29 September 2006.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity to support the relief he now seeks.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___ena__  _DL ____  _rn______  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.




____Eric N. Andersen_______
          CHAIRPERSON




INDEX

CASE ID
AR20070005658
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071120
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20061130
DISCHARGE AUTHORITY
AR 600-8-24
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
128
2.

3.

4.

5.