BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090000725 


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, restoration of 30.5 days of accrued leave.

2.  The applicant states, in effect, that he lost 15.5 days of accrued leave in fiscal year (FY) 2002 and 15 days in FY 2003.  He indicates that his chain of command was not familiar with the provisions of requesting special leave accrual (SLA) when he submitted his paperwork seeking this relief in 2003 and 2004.  He states he was told his leave would be restored prior to his retirement.

3.  The applicant provides SLA requests with attachments, dated 21 January 2004 and 8 December 2008, in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  On 30 April 2009, the applicant was released from active duty in the rank of sergeant first class for the purpose of retirement.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued, which covers the period from 22 August 1989 through 30 April 2009, shows he completed a total of 20 years and 23 days of active military service.

2.  Headquarters, 10th Transportation Battalion, Sailing Order 
Number 97-0016-02, dated 4 June 2002, shows that the applicant was aboard a United States Army Vessel that departed for Naval Station Roosevelt Roads, Puerto Rico, to support U.S. Army South (USARSO) on 4 June 2002.

3.  On 31 January 2003, U.S. Army Transportation Center and Fort Eustis issued Orders 031-00243.  These orders directed the applicant's unit to deploy to the 29th Support Group, U.S. European Command, in support of Operation Enduring Freedom for a period not to exceed 179 days.

4.  A DFAS Form 702 (Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement (LES)) covering the period 1 through 30 September 2003 shows that the applicant lost 15.5 days of leave that year.  An LES for the period 1 through 31 October 2003 shows he lost 15 days of leave that year.

5.  On 15 October 2003, the applicant initiated a DA Form 4187 (Personnel Action) requesting SLA.  Section IV (Remarks) shows the applicant was deployed for 100 days in support of USARSO from 24 May 2002 through 13 September 2002 during this period.  It also shows he had previously taken 11 days of leave for the year and that he was denied his previously-scheduled remaining leave for that year upon his return from deployment because of other unit mission requirements.  The unit and battalion commander recommended approval of this request.

6.  On 15 October 2003, the applicant initiated another DA Form 4187 requesting SLA.  Section IV shows the applicant was deployed for 188 days in support of Operation Enduring Freedom and Operation Iraqi Freedom (OEF/OIF) from 10 February 2003 to 16 August 2003.  It also shows he was both notified of the deployment and called in from leave to deploy in January 2003.  It further shows that the applicant took leave upon his return from deployment and that he lost 15 days of leave.  The unit and battalion commander recommended approval of this request.

7.  On 15 January 2004, the unit commander indicated that the applicant had previously attempted to submit his request for SLA on several occasions without success.  On 8 December 2008, the applicant's requests for SLA were again submitted for review through his chain of command.

8.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Services Branch (PSB), Army Human Resources Command (AHRC), Alexandria, Virginia.  That official states that the documentation in the applicant's case only qualifies him for reinstatement of his leave lost in FY 2003.  That official stated there were no supporting documents to qualify him to retain 

leave in FY 2002 because his deployment to Puerto Rico in April 2002 did not qualify for SLA carry over as it was not hostile fire pay (HFP) eligible or in direct support of OIF or OEF.

9.  The AHRC PSB Chief further stated based on laws in place during the years the applicant lost leave, he was entitled to carry over up to 60 days leave at the end of each FY and that Soldiers who served in an area in which they were entitled to HFP or imminent danger pay (IDP) for a period of at least 120 continuous days and/or were assigned duties in direct support of a contingency operation, were allowed to accumulate and carry forward a maximum of 90 days of leave at the end of the FY.  He further indicated that DFAS confirmed the applicant lost 15 days of leave in FY 2003 upon his return from theater and that those days were never restored or credited to his leave account.  Accordingly, that official recommended 15 days of leave be credited back to the applicant's leave account.

10.  On 22 April 2009, the applicant provided a response to the advisory opinion in which he cited Army Regulation 600-8-10 (Leaves and Passes), 
paragraphs 3-2(c) and 3-2(d), as the basis for his request for SLA in an attempt to restore his lost leave.  He also indicated that upon returning from his initial deployment in September 2002 he was asked to redeploy by his commanding officer who informed him at that time that he would be able to recoup any leave lost during both deployments.  He states that as a young noncommissioned officer he trusted the leadership appointed over him and that to deny him his additional 15.5 days of lost leave is to call his commander a liar.

11.  During the processing of this case, a further advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Compensation and Entitlements Division.  This office opined that the applicant is entitled to SLA and that SLA is not limited to only HFP or IDP areas.

12.  A copy of the second advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

13.  During the processing of this case a staff member of the board contacted a DFAS official to ascertain if the applicant had been paid for any leave throughout his entire military career.  The DFAS official advised that the applicant was paid for a total of 0.5 days of leave throughout his military career.  DFAS also provided the applicant's LES for the period he was paid.

14.  Army Regulation 600-8-10 provides the policies and procedures regarding the use of regular and special passes.  Paragraph 2-4 states that by law payment of accrued leave is limited to 60 days one time during a military career unless earned in a missing status.

15.  Paragraph 3-2(b) of Army Regulation 600-8-10 states that SLA is authorized to Soldiers who served in an area in which they were entitled to HFP or IDP for at least 120 continuous days.  No additional criterion is required under this paragraph for approval.

16.  Paragraph 3-2(c) of Army Regulation 600-8-10 states, in pertinent part, that Soldiers assigned to a designated deployable ship, designated mobile unit, or other similar prescribed duty may be authorized special leave accrual if operational requirements prevented the use of leave.

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

18.  Paragraph 3-3(f) of the same regulation states, in pertinent part, that leave accrual in excess of 60 days is credited only for use, not for payment.  Paragraph 3-3(e) states, in pertinent part, that in determining eligibility for SLA the following criteria must be considered:  the date command was notified of deployment requirements; who directed deployment requirement; unclassified name of the operation, if applicable; date the Soldier was notified of the deployment requirement; date of departure on deployment and date of return or projected return; information concerning commander's annual leave program and the Soldier's ability to take leave during the fiscal year; the Soldier's leave schedule prior to notification of the deployment requirement; whether the Soldier could have taken any leave after notification of deployment and prior to departure on deployment; whether the Soldier could have taken any leave or can take leave while deployed; if not, what prevented or is preventing leave use; and how many leave days the Soldier lost or will lose at the end of the fiscal year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his 30.5 days of leave lost should be restored has been carefully considered and found to have merit.  By regulation, Soldiers assigned to a designated deployable ship, designated mobile unit, or other similar prescribed duty; or deployed for a lengthy period, normally 60 or more days; deployed to meet a contingency operation of the United States; deployed to enforce national policy or an international agreement based on a national emergency or in the need to defend national security; and prevented from using leave through the end of the FY because of deployment may also qualify for SLA.

2.  The evidence of record in this case confirms that during FY 2002 the applicant had taken 11 days of leave prior to his deployment to Puerto Rico from 24 May 
2002 to 13 September 2002 and that he was denied authorization to take his previously scheduled leave upon his return from deployment because of additional unit mission requirements, which resulted in his losing 15.5 days of accrued leave during FY 2002.

3.  Contrary to the AHRC advisory opinion, under the SLA provisions of the governing regulation he should have been authorized to retain the 15.5 days of accrued leave he lost in FY 2002 based on his deployment on a designated deployable ship, designated mobile unit, or other similar prescribed duty to meet a contingency operation of the United States covering more than 60 days which prevented him from using his leave as evidenced by his unit and battalion commanders statements.  Therefore, it would be appropriate to correct his record to show this leave was designated as SLA at the end of FY 2002.

4.  In addition, the evidence of record confirms that the applicant was deployed in an HFP/IDP area in support of OEF and OIF for 188 days from 10 February to  16 August 2003.  Therefore he was also eligible to have the 15 days of accrued leave he lost in FY 2003 retained under SLA provisions.  Therefore, it would also be appropriate to correct his record to show this leave was designated as SLA at the end of FY 2003.

5.  Although SLA in excess of 60 days is credited for use only, given the applicant is no longer on active duty and because he only cashed in a total of 0.5 days of accrued leave during his career, it would be appropriate to show he was eligible to be paid for the additional 30.5 days of accrued leave now being restored at the time of his retirement and to pay him for this leave at this time.

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 showing he was authorized 15.5 days of SLA for FY 2002 and 15 days for FY 2003, by showing he was authorized to be paid for 30.5 additional days of accrued leave at the time of his retirement, and providing him this payment at this time.



      ____________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)                                         AR20090000725



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000725



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1