IN THE CASE OF:	  

		BOARD DATE:	        04 NOVEMBER 2008

		DOCKET NUMBER:  AR20080011647


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, that he be paid for 23.5 days of leave that he requested while he was in the Army and was denied.

2.  The applicant states that although he requested leave on many occasions, it was constantly denied due to misadvice given to his commander by the S-1 noncommissioned officer in charge (NCOIC) who believed leave could not be taken while a service member’s records were flagged.  He states that upon review of the leave and flag regulations, the NCOIC realized her error and submitted an exception to policy memorandum requesting that he be credited with the leave that he lost.

3.  The applicant provides a letter addressed to the Case Management Division dated 28 August 2008, two copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), a copy of electronic mail (email) addressed to his command sergeant major from his chain of command regarding a request that he submitted to take leave, a memorandum from his physician addressed to his commander recommending him for 30 days of convalescent leave, three copies of his Request and Authority for Leave (DA Form 31) dated 8 May 2006, a copy of his DA Form 31 dated 13 July 2006, a memorandum for record (MFR) dated 28 September 2006 requesting an exception to policy for use/lose leave, a copy of his DA Form 31 dated 12 September 2006, a copy of his Leave and Earnings Statement (LES) for the period covering 1 through 31 October 2006, a copy of his DA Form 31 dated 28 September 2006, a copy of his DA Form 31 dated 11 December 2006, a copy of his DA Form 31 dated 19 December 2006, three undated copies of DA Forms 31, a copy of his LES for the period covering 1 through 28 February 2007, and a copy of his Enlisted Record Brief in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The available records show that he served on active duty from 8 July 1983 to 7 July 1987.  He served in the New Mexico Army National Guard from 6 August 1996 to 10 September 1998, and he served in the U.S. Army Reserve (USAR) from 11 September 1998 until he again enlisted in the Regular Army on 1 October 2002 for a period of 3 years.

2.  The applicant was assigned to Fort Carson for duty as an intelligence analyst and his records show that thereafter, he became a Criminal Investigation Command (CID) special agent while serving in the pay grade of E-5.  He was transferred to Korea on 4 October 2005.

3.  On 24 February 2006, a suspension of favorable personnel actions (flag) was imposed against the applicant.

4.  On 10 April 2006, the applicant was furnished a memorandum of reprimand (MOR) from his battalion commander dated 7 April 2006 for wrongful appropriation of a government vehicle, use of position for private gain, failure to follow orders, and dereliction of duty.

5.  The applicant submitted a DA Form 31 dated 8 May 2006 requesting that he be granted ordinary leave from 9 May 2006 through 11 June 2006.  The DA Form 31 shows that his request for leave was approved.

6.  On 25 May 2006, the commanding general directed that the MOR be filed in the performance section of his Official Military Personnel File.

7.  On 13 July 2006, the applicant submitted a DA Form 31 requesting that he be granted ordinary leave from 21 August 2006 through 1 September 2006 to expend 11 days of use/lose leave.  However, the DA Form 31 does not indicate that the requested leave was approved.

8.  The applicant submitted a DA Form 31 dated 12 September 2006 requesting that he be granted leave from 1 October 2006 through 10 November 2006 for a permanent change of station.  The DA Form 31 does not indicate that the requested leave was approved.

9.  An unsigned MFR dated 28 September 2006 reads in part, "this memorandum is to request continuation beyond the 30 September deadline, 11 days Use/Lose Leave for [the applicant]…Due to unit operational requirements and several flagging actions it was not feasible for [the applicant] to expend the 11 days Use/Lose Leave time he has accumulated…Request forwarding of these days to the 2007 Fiscal Year."

10.  The applicant’s LES for the period covering 1 through 31 October 2006 shows that he had 11.0 days of lost leave.

11.  The available records show that the applicant requested 87.5 days of terminal leave from 15 January 2007 to 13 April 2007 on 11 December 2006; that he requested 12 days of ordinary leave from 15 January 2007 to 26 January 2007 on 19 December 2006; that he requested 12 days of ordinary leave from 29 January 2007 to 9 February 2007 on 8 January 2007; and that he requested a 4-day pass from 10 February 2007 to 13 February 2007 on 8 January 2007.  However, the available records do not show that his requests were ever approved.

12.  On 22 January 2007, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12b, due to patterns of misconduct.  His commander cited that he had knowingly made a false statement when applying to become a CID agent; that he had an improper relationship with a female junior enlisted Soldier; that he wrongfully used a government-owned vehicle for personal purposes; that he failed to properly respond to a reported sexual assault; and that he failed to obtain a pass for his absence from duty as the basis for his recommendation for separation.

13.  On 29 January 2007, after consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive consideration of his case by an administrative separation board contingent on his receiving no less than a general discharge.

14.  The appropriate authority (a lieutenant general) accepted his conditional waiver and approved the request for discharge, and further directed that the applicant be furnished a General Discharge Certificate.

15.  Accordingly, on 28 February 2007, the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct.

16.  The applicant’s LES for the period covering 1 through 28 February 2007 shows that he had earned 12.5 days of leave between the beginning of Fiscal Year (FY) 2007 and the date of his discharge on 28 February 2007.

17.  During the processing of this case, an advisory opinion was obtained from the Department of the Army Headquarters Office of the Deputy Chief of Staff, 
G-1, Chief of Compensation and Entitlements Division, who recommends that the applicant’s case be closed.  The Chief of Compensation and Entitlements Division opines that based on a review of the documents provided by the applicant, he lost 11 days of leave at the end of FY 2006; and that per Title 37, U.S. Code, Section 501(b)(3), the maximum number of days accrued leave a Soldier can sell back in a career is 60 days.  The Chief of Compensation and Entitlements Division states that the applicant’s records indicate that he has already sold back 60 days and as such, there is no legal basis for reimbursing him the 11 days of leave that he was unable to take in 2006.

18.  A copy of the advisory opinion was forwarded to the applicant on 10 September 2008 for his review and/or possible rebuttal.

19.  On 17 September 2008, the applicant submitted a rebuttal to the advisory opinion stating that it is not his request to sell leave; it is his request to be paid for 23.5 hours of leave that he requested and was not allowed to take as a result of admitted errors by the S-1 NCOIC and by the commander of his former unit.  He states that the advisory opinion does mention his 11 days of leave from FY 2006 that was lost, but the advisory opinion does not mention the 12.5 days of leave that he requested to take and was denied in FY 2007.  In his rebuttal, the applicant states that the 23.5 days of leave is over and above the leave that he was forced to sell.  He states that he is only requesting the total pay and allowances that he earned during his tour of duty in the Army.

20.  Department of Defense (DOD) Financial Management Regulation (also known as the DOD Pay Manual) provides, in pertinent part, that beginning on 10 February 1976, a military member may not be paid for more than 60 days of accrued leave during a career.  An exception to that provision was approved effective 2 August 1990, which allowed Reserve and Retired Component members who were called to active duty during the Persian Gulf Conflict to be paid for accrued leave over the 60-day limit.

21.  Army Regulation 600-8-10 (Leaves and Passes) is the authority for leaves and passes.  Chapter 2 provides the policy for leave, and paragraph 2-1 states that the Army leave policies are an important command requirement and care must be taken to prevent misuse of leave.  The frequent use of leave will make a positive contribution to morale, level of performance, and career motivation.  Operational missions and essential supporting functions of each command must be accomplished to the extent permitted by the manning provided.  Leave will be granted within the constraints of operational military requirements and to the degree of support for leave provided in the unit manning document.  Paragraph 4-3 provides that Soldiers are authorized, on the average, to take 30 days of leave a year.  (Commanders may grant more than 30 days if operationally feasible.)  Ordinary leave is a chargeable leave granted in execution of the commander's annual leave program.  The unit commander or designee is the approval authority for ordinary leave requests.

DISCUSSION AND CONCLUSIONS:

1.  The question in this case is whether or not the applicant is entitled to be paid for leave that he requested and was not granted.

2.  After a thorough review of this case and the applicable laws and regulations, it is clear that he is not entitled to be paid for leave based on the fact that leave was requested and not granted.

3.  The applicable regulation provides that the unit commander or designee is the approval authority for ordinary leave requests and leave will be granted within the constraints of operational military requirements and to the degree of support for leave provided in the unit manning document.  Operational missions and essential supporting functions of each command must be accomplished to the extent permitted by the manning provided.

4.  The unsigned MFR dated 28 September 2006, which the applicant submits in support of his application, shows that due to unit operational requirements and several flagging actions, it was not feasible for him to expend the 11 days of use/lose leave time that he accumulated.  The fact that he requested the leave and was not granted the leave does not entitle him to be paid for the leave that he lost.

5.  In regard to the 12.5 days of leave that he accrued between 1 November 2006 and 28 February 2007, he could not be paid for that leave as, according to the advisory opinion obtained in this case, he had already been paid for 60 days of accrued leave during his career.

6.  The evidence that the applicant submitted indicates that the applicant was denied leave based on operational requirements, and in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

7.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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)                                         AR20080011647



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ABCMR Record of Proceedings (cont)                                         AR20080011647



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