DOCKET NUMBER:  AR20080017593 


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 she be paid for 13.5 days of accrued leave that was dropped off of her leave and earnings statement (LES) on 1 October 1991. 

2.  The applicant states that she was an Active Guard Reserve (AGR) Soldier mobilized from 27 August 1990 to 21 May 1991 and on 1 October 1991, 13.5 days of her leave was dropped off of her account and should not have been because she was allowed to accrue more than 60 days by virtue of having been deployed in support of Operation Desert Shield/Storm.  She goes on to state that she attempted several times to have the error corrected to no avail; therefore, she should be paid for those days of leave.

3.  The applicant provides copies of documents related to her attempts to have the leave restored, copies of LESs, a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 21 May 1990, and a copy of her retirement orders.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Alabama Army National Guard (ALARNG) on 22 March 1978 and remained in the ALARNG through a series of continuous reenlistments.  She was ordered to active duty in the ALARNG in an AGR status under Title 32, U. S. Code and, with the exception of a 1-year break in 1985, she continued to serve on active duty as an AGR Soldier.  The applicant served in the following occupational military specialties: Human Resources Specialist, Administrative Specialist, Finance Senior Sergeant, and Information Systems Chief. 

3.  On 27 August 1990, she was ordered to deploy in support of Operation Desert Shield/Storm.  She deployed to Southwest Asia from 9 September 1990 to        17 May 1991.  She was honorably released from active duty on 27 August 1990 and returned to her ALARNG unit in an AGR status.  She was promoted to the pay grade of E-8 on 20 September 2004.

4.  On 31 July 2007, she was honorably released from active duty and was transferred to the Retired List effective 1 August 2007.  She had served 25 years, 2 months and 15 days of total active service and she had 29 years of service for pay purposes.

5.  In the processing of this case, officials at the Defense Finance and Accounting Service (DFAS) - Indianapolis, Indiana (DFAS-IN) were contacted regarding the applicant's claim.  Officials at the DFAS-IN indicated they could not identify the 13.5 days of leave the applicant claimed she lost; however, they could determine that she had been overpaid 15.5 days of lump sum leave.  The officials went on to explain that her pay records show the following actions occurred:

   a.  Prior to October 1989, the applicant was paid for 55.5 days of lump sum leave.

	b.  On 1 October 1990, 11.5 days of leave were lost due to change of the fiscal year.

	c.  In January 1991, an adjustment was made to the applicant’s leave balance so that she carried forward the 11.5 days lost from fiscal year 1990 to fiscal year 1991 (her leave was adjusted from 60.0 days to 71.5 days due to Desert Storm).
	d.  On 26 May 1991, the applicant was paid for 7.5 days of lump sum leave with a tax-exempt combat zone status.

	e.  On 26 May 1991, she was paid for 12.5 days of lump sum leave.

   f.  In sum, she was paid for a total of 20 days of lump sum leave on 26 May 1991, and when added to the 55.5 days of lump sum leave she was paid for prior to 1989, the total equals 75.5 days of lump sum leave.  The maximum allowable lump sum leave that can be paid over a period of a career is 60 days.  

6.  Officials at DFAS went on to state that they could not find the leave the applicant claimed that she was due; however, they would be happy to look at her case further if she could provide additional information that would help to substantiate her claim.  

7.  The applicant was provided a copy of the DFAS-IN response and she responded back to DFAS officials, not to the Board.  The applicant responded to DFAS-IN by stating that the 11.5 day adjustment never took place.  She provided additional documents to DFAS officials, which included LESs from May to December 1991.

8.  A review of the available records as well as the documents submitted by the applicant failed to show a copy of her January 1991 LES, the month in which DFAS-IN officials indicate that the adjustment was made for the 11.5 days of lost leave for fiscal year 1990.

9.  Army Regulation 600-8-10 (Leaves and Passes) serves as the authority for leaves and passes.  It provides, 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.  Congress has provided compensation (no more than 60 days in a military career) for Soldiers who were not able to use their leave because military requirements prevented it.  Soldiers will not be required to use leave immediately prior to separation simply for the purpose of reducing leave balances.  On the other hand, use of leave as an extra money program defeats the intent of Congress to provide for the health and welfare of Soldiers.  It should not be used either as a method of compensation or as a career continuation incentive.  It is specifically intended that large leave balances will not be accrued expressly for settlement upon release from active duty.  Additionally, leave will not be granted that will interfere with timely processing or transition.  Chapter 3 of that regulation provides the provisions for special leave accrual.  The intent of special leave accrual is to provide relief to Soldiers who are not allowed leave when undergoing lengthy deployments or during periods of hostility.  Leave accrued under this provisions may not be cashed as lump sum leave.

10.  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.  

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit evidence that would satisfy this requirement.

2.  Although it is not the intent of the Government that Soldiers lose their accrued leave, Soldiers are routinely denied leave due to mission essential needs.  There are no guarantees that leave will always be approved or that circumstances will change that prevent one from taking leave for an extended period of time, which is an inherent risk in accumulating large sums of leave for such purposes.

3.  It is also noted that the vast majority of the applicant's service was full-time active duty with the ALARNG and that she served in both finance and personnel military occupational specialties.  Accordingly, she should have been aware that there was a maximum of 60 days of lump sum leave that could have been cashed in during a career.  However, for reasons not explained in the available records, the applicant cashed in 75.5 days of lump sum leave, which was 15.5 days more than allowed for under the law.

4.  While it is not readily apparent, based on the available evidence, where the applicant lost the 11.5 days of leave she claims, the information obtained from DFAS indicates that she was paid for 15.5 days of leave that she was not authorized to be paid.  Accordingly, it appears that she may have received more of a leave benefit than she was entitled.

5.  Therefore, in the absence of evidence to dispute the information provided by DFAS, the Board must presume that the applicant received all of the leave benefits that she was entitled and that she is not entitled to the relief she is requesting.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of her service in arms.




      _______ _   __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)                                         AR20080017593



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ABCMR Record of Proceedings (cont)                                         AR20080017593



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