IN THE CASE OF:	  

		BOARD DATE: 	        9 June 2009 

		DOCKET NUMBER:  AR20090003242 


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 payment of accrued leave.

2.  The applicant states he believes he is entitled to an additional 58 days of accrued leave which he claims he lost through Army negligence.  He states he was placed in pre-trial confinement for 4 years awaiting trial by a General Court-Martial (GCM).  He states, in effect, when he was found not guilty, all of his rights and privileges were restored.  He had 95 days of leave; he was paid for 37 days; and he was caused to lose 58 through no fault of his own.

3.  The applicant provides with his application and by facsimile:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 5 January 2009;

	b.  copies of DFAS Form 702 (Leave and Earning Statement (LES)) for December 2006, 2007, and 2008;

	c.  a copy of his Separation Leave Record, dated 5 January 2009;

	d.  a copy of a Memorandum for Record (MFR) issued by Headquarters, New York Army National Guard (NYARNG) on 15 June 2005;


	e.  copies of the following orders issued by the U.S. Army Human Resources Command (HRC), Alexandria, VA:  Orders A-11-524471, dated 22 November 2005; A-11-524771A01, dated 8 May 2006; A-11-524771A02, dated 11 October 2006; and A-090719647, dated 24 September 2007;

	f.  a copy of Orders 109-278, issued by Office of the Adjutant General, NYARNG, on 19 April 2006;

   g.  a copy of Orders A-09-719747A01, issued by HRC-St. Louis, MO, on 2 December 2008;

   h.  a copy of DD Form 458 (Charge Sheet), dated 13 June 2005; and

   i.   and a copy of General Court-Martial Orders Number 2, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, on 9 March 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was a staff sergeant (SSG)/E-6 in the NYARNG serving in military occupational specialty (MOS) 92Y (Supply Sergeant).

3.  On 15 July 2003, the applicant was ordered to full-time ARNG duty in an Active Guard Reserve (AGR) status for a period of 3 years; however on 11 May 2004, he was honorably released from active duty by reason of completion of AGR duty.

4.  Orders 120-266, Office of the Adjutant General, NYARNG, dated 29 April 2004, ordered the applicant to active duty for a period of 560 days – until 23 November 2005 – in support of Operation Iraqi Freedom.  He subsequently entered active duty on 12 May 2004 and deployed to Kuwait/Iraq on 11 January 2005 with Headquarters and Headquarters Company (HHC), 42nd Infantry Division, NYARNG.  He was stationed at Forward Operating Base (FOB) Danger in Tikrit, Iraq.

5.  On the evening of 7June 2005, explosions at the office of the Company Commander of HHC, 42nd Infantry Division killed the commander, a captain, and a first lieutenant.  The explosions were originally thought to be the result of a mortar or rocket-propelled grenade attack by insurgent forces.  Shortly thereafter, 

military investigators determined the two officers were killed by a US Claymore mine which had been placed in the window of the company commander’s office, then detonated.  This detonation was followed seconds later by hand grenade explosions.  The deaths were classified as homicides.

6.  Investigation identified the applicant as the perpetrator of the attack on the two officers.  On 13 June 2005, he was placed in pre-trial confinement in Kuwait. At an Article 32, Uniform Code of Military Justice (UCMJ) hearing in Kuwait in October and November 2005, the hearing officer recommended a GCM for the applicant based on the evidence presented.  The GCM convening authority, the Commanding General, XVIII Airborne Corps, accepted the recommendation and, in December 2005, the applicant was transferred to the United States and the US Marine Corps Base Camp Lejeune (NC) Brig pending trial at Fort Bragg, NC.

7.  On 16 February 2006, court-martial charges were preferred against the applicant for one specification of violating a general order by wrongfully possessing a pistol between on or about 1 February 2005 and 7 June 2005; one specification of violating a general order by wrongfully possessing unexploded ordnance on or about 8 June 2005; one specification of violating a general regulation by wrongfully possessing alcohol between on or about 1 February 2005 and 7 June 2005; and one specification of disposing of by trading with or by giving to an Iraqi national 20 printers and copiers of a value greater than $500 between on or about 1 February 2005 and 7 June 2005.

8.  On 22 November 2005, HRC-Alexandria, VA, published Orders A-11-524471, continuing the applicant on active duty through 20 May 2006 for the purpose of UCMJ action.  He was assigned to HHC, XVIII Airborne Corps, Fort Bragg, NC.

9.  According to published media reports, on April 3, 2006, the applicant agreed to plead guilty to murder in exchange for a life sentence without the possibility of parole.  However, the GCM convening authority rejected the plea agreement and directed the case go to trial under two specifications of premeditated murder, Article 118, UCMJ.  Thus the applicant was charged with “On or about 7 June 2005, at Forward Operating Base Danger, Iraq, murder with premeditation, Captain [XXX] by means of emplacing and detonating an explosive device outside a room where Captain [XXX] was located” and “On or about 7 June 2005, at Forward Operating Base Danger, Iraq, murder with premeditation, First Lieutenant [XXX] by means of emplacing and detonating an explosive device outside a room where First Lieutenant [XXX] was located.”


10.  On 19 April 2006, Office of the Adjutant General, NYARNG, published Orders 109-278, amending the applicant’s period of active duty to end on 20 May 2006 instead of 23 November 2005.

11.  On 8 May 2006, HRC-Alexandria, VA, published Orders A-11-524471A01, amending the applicant’s active duty end date from 20 May 2006 to 16 November 2006 and, on 11 October 2006, HRC-Alexandria, VA, published a second set of orders, Orders A-11-524471A02, further amending his end date from 16 November 2006 to 16 November 2007.

12.  On 23 October 2006, Office of the Adjutant General, NYARNG, published Orders 296-1019, directing the applicant’s voluntary release from active duty under the provisions of paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) by reason of misconduct (serious offense), effective 23 October 2006.

13.  On 24 September 2007, HRC-Alexandria, VA, published Orders A-09-719647, extending the applicant on active duty for a period of 12 months beginning on 17 November 2007 and ending on 15 November 2008 for the purpose of UCMJ action.  He remained assigned to HHC, XVIII Airborne Corps, Fort Bragg, NC.

14.  On 2 December 2008, HRC-St. Louis, MO, published Orders A-09-719647A01, amending the applicant’s end date from 15 November 2008 to 13 May 2009.

15.  The applicant’s GCM convened at Fort Bragg in October 2008.  He pleaded not guilty to the two specification premeditated murder under Article 118, UCMJ. On 4 December 2008, in accordance with his pleas of not guilty, he was found not guilty of both specifications.  All rights, privileges, and property of which he was deprived by virtue of the GCM proceedings were directed to be restored.

16.  The applicant’s records show he was honorably released from active duty to the control of his ARNG unit on 5 January 2009.  The DD Form 214 he was issued shows he completed 4 years, 7 months, and 24 days of creditable active service during this period.  Item 16 (Days Accrued Leave Paid) of this form shows the entry “37.” 


17.  The applicant’s Separation Leave Record, dated 5 January 2009, and prepared by an official at the Fort Bragg, NC, Finance Office shows the following entries:

	a.  the applicant earned a total of 140 days of accrued leave during his 1,700 days of active duty from 12 May 2004 (date he entered active duty) to 5 January 2009 (date he was released from active duty);

	b.  he used 15 days of leave from 1 October 2004 to 15 October 2004 and 30 days of leave from 4 December 2008 to 2 January 2009, for a total of 45 days; 

	c.  he had a balance of 95 days (140 accrued minus 45 used), of which he sold 37 days of accrued leave.

18.  A breakdown of the applicant’s LES shows:

	a.  his December 2006 LES shows he had a previous balance of 60 days, he earned 7.5 days from 1 October 2006 to 31 December 2006, and had a credit balance of 67.5 days;

	b.  his December 2007 LES shows he had a previous balance of 60 days, he earned 0 days from 1 October 2007 to 31 December 2007, and had a credit balance of 60 days; and 

	c.  his December 2008 LES shows he had a previous balance of 60 days, he earned 4 days from 15 November 2008 (date his enlistment was extended) to 31 December 2008, he used 0 days, and had a credit balance of 64 days.

19.  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 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 1?2 days a month.  This entitlement excludes periods of confinement for more than 1 day while awaiting court-martial provided the Soldier is convicted.  Additionally, paragraph 2-4 of this regulation also states, in pertinent part, that payment of accrued leave is made per Department of Defense Financial Management Regulation 7000.14–R.  By law, payment of accrued leave is limited to 60 days one time during a military career, unless leave is earned in a missing status.


20.  Table 2-1 of Army Regulation 600-8-10 states if the date of separation occurs during the 1st through the 6th of the month, the Soldier earns 1/2 day of leave.

21.  Chapter 3 of Army Regulation 600-8-10 covers Special Leave Accrual (SLA). It states, in pertinent part, that the intent of SLA 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.

22.  Title 10, U.S. Code, section 701f provides SLA accrual to Soldiers who meet the criteria in this section.  SLA 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.  No additional criteria are required under this paragraph for approval.  Soldiers assigned to a designated deployable ship, designated mobile unit, or other similar prescribed duty may be authorized SLA if operational requirements prevented use of leave.  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; or (4) Prevented from using leave through the end of the FY because of deployment.

23.  SLA authorizes Soldiers to carry forward up to 90 days of leave at the end of an FY (60 days normal leave carry over plus 30 days SLA).  Commanders in the grade of 05 or higher are the approval authority for Soldiers who serve at least 120 continuous days in an area in which the Soldier is entitled to hostile fire and imminent danger pay.  Commanders will not approve SLA until after the fiscal year, when it becomes known how much leave the Soldier will lose.  Soldiers may continue to qualify for the 120-day requirement when hospitalized outside the designated area due to injuries resulting from hostile action.  Qualification continues when the Soldier remains entitled to receive hostile fire and imminent danger pay.  Leave accrual in excess of 60 days is credited only for use, not for payment.  Accrued SLA accrual must be used before the end of the third fiscal year after the fiscal year in which the qualifying service ended.  

24.  Title 10, United States Code, section 1201, provides instructions for SLA.  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 contends that he should have been paid for 58 days of accrued leave.  

2.  On the surface, the applicant's Separation Leave Record, dated 5 January 2009, appears to be mathematically correct in showing he earned 140 days and used 45 days from 1 October 2004 to 5 January 2009.  However, the Army leave program does not allow more than 60 days of accrued leave at the end of any fiscal year (except in the case of an approved SLA).  Therefore, despite the applicant's inability to use leave during his confinement, he could not have accrued 140 days even if he had had an approved SLA, which he did not.  

3.  The applicant had a leave balance of 60 days on 1 October 2008 (the beginning of the FY09).  He was released from confinement on/about 15 November 2008 and would have accrued 1 1/2 days in November 2008 and 2 1/2 days in December 2008 for a total of 64 days.  He was charged with 27 days of leave from 4 December 2008 to 2 January 2009 (due to holidays and weekends).  This left him with a leave balance of 37 days which he sold upon his discharge.

4.  The criteria for SLA are based on law; therefore, exceptions are not permitted. By law, accrued leave that exceeds 60 days at the end of the FY is lost except as authorized under 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.  The applicant did not and could not have SLA during his confinement.  Even if he was authorized a 30-day SLA, by regulation, any leave accrual in excess of 60 days is credited only for use, not for payment.  Therefore, there is insufficient evidence to grant the applicant the requested relief in this case.


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.




      ___________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)                                         AR20090003242





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ABCMR Record of Proceedings (cont)                                         AR20090003242



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