IN THE CASE OF:	

		BOARD DATE:	23 July 2009    

		DOCKET NUMBER:  AR20080013908 


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 that his 19 days of lost leave in fiscal year 2007 be restored.

2.  The applicant states he was assigned to a new unit on 27 August 2007 and received orders to report for deployment to Iraq effective 27 September 2007.  Because of predeployment/deployment requirements he was unable to utilize his leave and it was forfeited.

3.  The applicant provides copies of his reassignment and deployment orders, memoranda related to his efforts to have his leave restored, and excerpts from pertinent regulations.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Marine Corps Reserve (USMCR) on 28 October 1977 and served on active duty from 29 June 1978 through 28 June 1982.  The applicant continued as a drilling Reservist until 14 January 1983 when he transferred to the Individual Ready Reserve (IRR).

2.  On 25 June 1984 the applicant enlisted in the U.S. Army Reserve (USAR). and served on active duty in a pre-warrant officer appointment status from 15 November 1984 through 13 November 1985. 

3.  He was appointed a Warrant Officer One (WO1) on 14 November 1985 and entered active duty on 15 November 1985 in an Active Guard Reserve (AGR) status .

4.  He served in an AGR status until 26 December 1991 when he requested release from active duty for personal reasons.

5.  The applicant had several additional periods on active duty as follows: 10 January 1996 through 30 April 1996; 15 October 2002 through 11 April 2003; 5 May 2003 through 3 May 2004; and 9 May 2004 through 8 December 2004.

6.  He accepted an AGR position with the U.S. Army Aviation Center, Fort Rucker, AL and while serving in that position he was promoted to Chief Warrant Officer Five (CW5), effective 13 October 2006. 

7.  On 27 August 2007, 244th Aviation Brigade, Fort Sheridan, IL, Orders
07-239-00003 reassigned the applicant to Headquarters and Headquarters Company, 244th Aviation Brigade, Fort Sheridan, for the purpose of deployment in support of Operation Iraqi Freedom.

8.  On 2 October 2007, the 244th Aviation Brigade Commander requested approval of the applicant's request for special leave accrual.  He stated that the command had received deployment notification on 31 July 2007 and that the applicant was not notified until 27 August 2007 when he received his reassignment orders.  The applicant had taken 10 days of leave prior to notification but due to predeployment training requirements he was precluded from taking any additional leave.  Due to the predeployment training requirements, the applicant lost 19 days of accrued leave at the end of fiscal year 2007.  A timeline addendum was attached to the request, as were unit mobilization orders and a copy of his Leave and Earnings Statement supporting the reported periods of leave used and lost.

9.  An undated memorandum from the U.S. Army Human Resources Command, St. Louis. MO stating that, since the lost leave did not accrue as a result of mobilization or deployment, the applicant's request was denied.

10.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies for the leave and pass function of the Military Personnel System.  In pertinent part it provides the following:

	a.  Paragraph 2-2a states that the leave and pass program is designed to allow Soldiers to use their authorized leave to the maximum extent possible;  
	b.  Paragraph 2-2b(2) states that Soldiers are cautioned that if they do not take leave they may lose leave at the end of the fiscal year.  Also, Soldiers who maintain a 60-day leave balance, and wait until late in the fiscal year to take leave, will be informed that they risk loss of leave over 60 days if the operational situation requires their presence;  

	c.  Paragraph 3-1 states 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.  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;  

	d.  Paragraph 3-2a states that Title 10, U. S. Code, section 701f, provides special leave accrual to Soldiers who meet the criteria in this section.  

	e.  Paragraph 3-2b states that special leave accrual is authorized to Soldiers who served in an area in which he or she was entitled to hostile fire or imminent danger pay for at least 120 continuous days.  

	f.  Paragraph 3-2c states the Soldiers assigned to a designated deployable ship, designated mobile unit, or other similar prescribed duty may be authorized special leave accrual if operational requirements prevent use of leave.

	g.  Paragraph 3-2d states that Soldiers who meet all the following conditions may also qualify for special leave accrual:  (1) deployed for a lengthy period, normally 60 or more days; (2) deployed to meet a contingency operation of the United States; (3) deployed to enforce national policy or an international agreement based on a national emergency or in the need to defend national security; and (4) prevented from using leave through the end of the fiscal year because of deployment.

11.  In Fiscal Year 2000, the National Defense Authorization Act changed Title 37, U.S. Code, section 501 to allow any Soldier who was serving on a contingency operation to be able to sell any unused leave at the end of the contingency operation without impact to the career sell back of leave.  The following year, Congress changed Title 37, U. S. Code, section 501 again to allow any Soldier who was on active duty for a period of less than 365 days to sell leave and not impact on the career sell back limitation.  This action was not limited to contingency operations but for any period of active duty less than 365 days.


12.  Title 10, U. S. Code, section 701f(1) states that, under uniform regulations to be prescribed by the Secretary concerned, and approved by the Secretary of Defense, a member who serves on active duty for a continuous period of at least 120 days in an area in which he is entitled to special pay under section 310(a) of Title 37 may accumulate 90 days leave.  Section 701f(2) states that, under the uniform regulations, a member of an armed force who serves on active duty in a duty assignment in support of a contingency operation during a fiscal year and who, except for this paragraph:  (A) would lose any accumulated leave in excess of 60 days at the end of that fiscal year, shall be permitted to retain such leave (not to exceed 90 days) until the end of the succeeding fiscal year; or (B) would lose any accumulated leave in excess of 60 days at the end of the succeeding fiscal year, shall be permitted to retain such leave (not to exceed 90 days) until the end of the next succeeding fiscal year.

13.  Department of Defense Instruction (DODI) Number 1327.6 (Leave and Liberty Procedures), paragraph 6.14.4, states, in part, that special leave accrual shall  not be used as a means to authorize the accumulation of leave in excess of 60 days that is a result of the Service member's failure to manage properly his or her leave program.  Determinations of qualifying duty and operational mission requirements shall be made at the headquarters level that directs the leave policies of the Military Service concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was precluded from taking his accrued leave due to his reassignment to a unit that was preparing to be deployed.  As a result of predeployment training requirements he was unable to utilize his accrued leave in excess of 60 days by the end of fiscal year 2007.

2.  It appears that the headquarters-level authority cited in DODI Number 1327.6 denied the request for special leave accrual submitted by the applicant's command based upon a narrow interpretation of its authority under the DODI.  It is true the applicant accrued the majority of his leave in excess of 60 days while he was not assigned to the deployable unit.  However, had he not been assigned to that unit he could have taken all of his accrued leave during the month of September 2007.  It appears it is the spirit of the law and regulatory authorities to grant special leave accrual to Soldiers who could have taken their excess leave except for the fact deployment/pre-deployment activities prevented their doing so.  Therefore, it would be appropriate to grant the applicant's request for restoration of the 19 days of lost leave at the end of fiscal year 2007.



BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting the applicant's leave balance to show restoration of 19 days of leave lost at the end of fiscal year 2007 under the provisions of the Special Leave Accrual program.



                                                                    _______X__________
       	   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)                                         AR20090003569



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013908



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1