IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080000458 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, retroactive recoupment of 18 days of lost Special Leave Accrual (SLA).

2.  The applicant states that he was deployed from September 2001 through June 2003 in support of Operations Enduring/Iraqi Freedom.  He requested to return from the area of responsibility (AOR) one month early due to attendance at the Department of Defense (DOD) Senior Service College and not having enough time to take accrued leave.  However, he was denied early departure and was released from the AOR on 1 June 2003.  He out-processed his unit and took all the leave he could take until he reported to the War College.  However, in October 2003, he lost 18 days of accrued leave.  He concludes that legislation was in the process of being changed at the time to allow 120 days of SLA instead of 90 days and that because he was only able to accrue 90 days, this caused him to lose 18 days at no fault of his.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Memorandum, dated 27 February 2003, request for early redeployment.

	b.  Memorandum, dated 27 April 2003, authorization to depart the AOR.

	c.  Military Personnel (MILPER) Message Number 04-298, dated 28 October 2004, Special Leave Accrual.
	d.  Memorandum For Record, dated 1 May 2003, Local Out-processing Form.

	e.  Leave and Earnings Statement (LES) for October 2003.

4.  On 7 May 2008, by electronic mail (email), the applicant submitted copies of his LES for June 2003, July 2003, August 2003, and September 2003, and a rebuttal to the advisory opinion, dated 27 March 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Quartermaster colonel who was placed on the Retired List on 1 April 2007 after 26 years, 2 months, and 27 days of honorable and faithful service.

2.  The applicant's records show that, among other foreign service, he served in Kuwait from 30 September 2001 to 2 June 2003 and in Qatar from 24 February 2004 to 12 March 2004, in support of the Global War on Terrorism. 

3.  On 27 February 2003, by memorandum, the applicant requested an exception to policy to depart the AOR on or about 4 May 2003 in order to relocate his family in preparation for attendance at the War College.  At the time, he had 90.5 days of accrued leave.

4.  On 27 April 2003, by memorandum, the applicant was notified that he was authorized to depart the AOR on 1 June 2003.  Subsequently, he departed the AOR on or about 2 June 2003.  

5.  The applicant submitted his LES for the period June 2003 to October 2003 that show his accrued leave balance as follows:

	a.  1-30 June 2003, earned 2.5 days, used 0 days, balance:100.5 days;

	b.  1-31 July 2003, earned 2.5 days, used 0 days, balance: 103.0 days; 

	c.  1-31 August 2003, earned 2.5 days, used 0 days, balance: 105.5 days;

	d.  1-30 September 2003, earned 2.5 days, used 0 days, balance: 108.0 days; and 

	e.  1-31 October 2003, earned 2.5 days, used 0 days, lost 18 days, balance: 92.5 days.

6.  The applicant's records further show that he attended and successfully completed the Air War College at Maxwell Air Force Base, Alabama, from 28 July 2003 to 1 June 2004. 

7.  In connection with the processing of this case, an advisory opinion was obtained on 27 March 2008, from the Chief of Compensation and Entitlements Division, Office of the Deputy Chief of Staff G-1, Pentagon, Washington, D.C.  The Chief recommended disapproval of the applicant's request.  He stated that:

	a.  SLA may be granted to Soldiers who serve on active duty for a continuous period of at least 120 days in an area in which they are entitled to special pay for duty subject to Hostile Fire Pay or Imminent Danger Pay (HFP/IDP) and to those Soldiers not authorized leave as a consequence of duty assignments in support of contingency operations.  A review of the applicant's October 2003 LES indicates that the applicant was authorized 30 days of SLA as a consequence of his deployment in support of Operations Enduring and Iraqi Freedom.  This is shown on his LES in the 90-day leave balance he carried forward into Fiscal Year (FY) 2004; and

	b.  Until 2008, Soldiers were authorized to retain a 60-day leave balance year to year.  They are now authorized to retain a leave balance of 75 days due to provisions in the 2008 National Defense Authorization Act.  However, Army Regulation 600-8-10 (Leaves and Passes) contains a caution to Soldiers who maintain a maximum 60-day/75-day balances year to year that they risk loss of leave over 60/75 days should operational situations prevent them from taking leave.  This appears to be the case with the applicant being denied early release from theater to take leave and his scheduled attendance at the War College immediately following his return from the AOR.  Additionally, the legislation to allow Soldiers to carry up to 120 days leave was not in effect for leave lost in FY2003.  Consequently, those provisions cannot be applied retroactively to the 18 days lost by the applicant in FY2003.  

8.  The applicant was furnished a copy of this advisory opinion on 28 March 2008.  He did not concur and submitted a rebuttal statement on 8 May 2008.  In his rebuttal, the applicant stated that he took approximately 35 days of leave on 2 July 2001 and reported to Third Army on 12 August 2001.  After the events of 11 September 2001, he deployed to the AOR in support of Operations Enduring and Iraqi Freedom where Third Army had a significant role in the Global War on Terrorism.  He further adds that the events of 11 September 2001 could not have been anticipated and their effects on Soldiers were not known at the time.  Legislation was subsequently enacted to recognize the new realties and as such 
Soldiers were allowed to keep up to 120 days of SLA.  He concludes that he served the Nation proudly and only requests to be compensated for this administrative error.

9.  Military Personnel (MILPER) Message 04-298, dated 28 October 2004, and effective 1 October 2004, implemented new SLA guidance for Soldiers serving in HFP/IDP by allowing Soldiers to accumulate up to 120 days of SLA and that any leave in excess of 60 days accumulated under this provision is lost if not used by the end of the third fiscal year (FY).  Furthermore, this guidance applied to Soldiers who served in support of contingency operations during FY04 or whose primary duties were in direct support of contingency operations AND were denied leave, continued to allow 90 days of SLA. 

10.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies for the leave and pass function of the Army Military Personnel System.  Paragraph 
2-3 outlines the leave accrual policy.  It 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 ½ days a month.  It also specifies that when authorized under special leave accrual provisions, Soldiers may accrue and carry forward up to 60 days leave at the end of each FY.  Further, accrued leave that exceeds 60 days at the end of the FY is lost except as authorized under special leave accrual (SLA) provisions. The intent of SLA is to provide relief to Soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility.

11.  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's request to have the 18 days of leave he lost reinstated and the supporting documents he submitted were carefully considered.  Although, the applicant's situation is unfortunate, there are no provisions of law or regulation that allow for granting the applicant relief in this case.




2.  The evidence of record shows that at that time, Soldiers were authorized to retain a 60-day leave balance year to year.  Furthermore, the applicant was granted 30 days of SLA in FY2003 as a consequence of his support of contingency operations.  This is clearly shown on his October 2003 LES that shows he had 60 days of accrued leave at the end of FY 2003, 30 days of SLA, and 2.5 days earned in October 2003.

3.  The evidence of record further shows that the applicant departed the AOR on or about 2 June 2003.  He had a reporting date to the War College at Maxwell AFB,  Alabama, on 17 July 2003.  He was not denied leave.  He had an opportunity to take leave from on or about 2 June 2003 until the date he reported to the War College.  Yet, he chose not to.  As a result, his leave balance exceeded the maximum allowed at the end of FY2003, thus leading to a loss of 18 days. 

4.  The legislation to allow Soldiers to carry up to 120 days leave was not in effect in 2003.  Even if it were, the applicant was not denied leave; he chose not to take leave.   Further, given the applicant's rank and experience as a former battalion and brigade commander, he knew or should have known the law and Army policy regarding leave accrual, which is well publicized and known throughout the Army.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



								XXX
      _______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000458



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080000458



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1