IN THE CASE OF:	  

		BOARD DATE:	    20 January 2010

		DOCKET NUMBER:  AR20090014142 


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 correction of his records to show he did not take leave from 1 September 2007 through 9 September 2007.

2.  The applicant states that he was charged with leave from 1 September 2007 through 9 September 2007.  He adds that he was deployed with his unit from April 2007 to June 2008 and that the only leave he took was rest and recuperation (R&R) leave from 9 December 2007 to 27 December 2007.  He also states that he could not take more than one period of leave without express consent from the brigade commander.

3.  The applicant provides a copy of his leave and earnings statements (LESs) from August 2007 to August 2008; a copy of an undated letter from the Defense Finance and Accounting Service (DFAS), Indianapolis, IN; a copy of DFAS Statement of Military Pay Account, dated 3 September 2008; two statements of support from his former platoon sergeant and a platoon leader; a copy of his temporary change of station orders, dated 2 April 2007; and a copy of his DA Form 31 (Request and Authority for Leave), dated 9 December 2007, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 5 years on 11 March 2003.  He completed basic combat and advanced individual training and was awarded military occupational specialty 88M (Motor Transport Operator).  He was promoted through the ranks to sergeant (SGT)/E-5.
2.  The applicant's records also show he served in Kuwait/Iraq from 3 May 2007 to 6 June 2008.  He was assigned to Company B, 202nd Brigade Support Battalion, 4th Stryker Brigade Combat Team.

3.  On 9 December 2007, the applicant departed Iraq on an 18-day R&R leave from 11 December 2007 through 27 December 2007.

4.  The applicant's records show he was honorably released from active duty in the rank/grade of SGT/E-5 on 3 September 2008.

5.  The applicant's pay records show he took 49 days of transition leave (formerly known as terminal leave) from 17 July 2008 to 3 September 2008.

6.  The applicant's LESs for the period from August 2007 through September 2008 show the following entries:  

Month
Leave Brought Forward
Earned
Used
Balance
August 2007



36.5
September 2007
36.5
2.5

39.0
October 2007
39.0
2.5

41.5
November 2007
41.5
2.5

44.0
December 2007
44.0
2.5

46.5
January 2008
46.5
2.5

49.0
February 2008
49.0
2.5
18.0
33.5
March 2008
33.5
2.5

36.0
April 2008
36.0
2.5

385
May 2008
38.5
2.5

41.0
June 2008
41.0
2.5

43.5
July 2008
43.5
2.5

46.0
August 2008
46.0
2.5

48.5
September 2008
48.5
.5
49.0
00.0





7.  It is noted here that none of his LES (Remarks) show he took leave in September 2007.

8.  On an unknown date in 2009, an official at the Directorate of Debt and Claims Management, DFAS-Indianapolis, notified the applicant by letter that a review of his Master Military Pay Account shows he was charged regular leave from 1 September 2007 through 9 September 2007.  He also incurred a debt due to collection of pay and allowances for 8 days of negative leave, charged from 17 July 2008 to 3 September 2008.  The Statement of Military Leave Account provided by the DFAS official shows the following entries:

	a.  The applicant used 18 days of ordinary (R&R) leave from 11 December 2007 through 28 December 2007 and 49 days of transition leave from 17 July 2008 to 3 September 2008.

	b.  He accrued 28 days of leave in Fiscal Year (FY) 2008 from 1 October 2007 (the beginning of the FY) to 3 September 2008 (the date he was separated) and had previously brought forward 31.0 days from the previous FY for a total of 59 days.

	c.  He had a negative leave balance of 8 days (59 minus 67) and an additional 1 day of negative leave (non-accrual of leave during excess leave) for a total of negative 9 days.

	d.  He owed a total of $944.86 as a result of non-entitlement to a portion of his pay and allowances during the negative leave.

9.  The applicant submitted two statements, dated 25 May 2009 and 27 July 2009, from his former platoon sergeant and former platoon leader, both attesting that aside from his R&R leave, the applicant did not take leave during the period claimed by DFAS.

10.  Army Regulation 600-8-10 (Leave and Passes) covers leave and pass programs.  It prescribes polices, operating tasks, and steps governing military personnel absences.  Chapter 2 pertains to policy for leave.  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 2.5 days a month.  Soldiers may accrue and carry forward up to 60 days of leave at the end of each FY.  Accrued leave that exceeds 60 days at the end of the FY is lost.

11.  Army Regulation 600-8-10, paragraph 4-21, specifies that transition leave is a chargeable leave granted together with transition from service, including retirement.  Leave will not be granted if it exceeds that accrued or to be accrued between the date of approval and date of transition.  It does not provide a Soldier additional accrued leave.  It only allows a Soldier to use accrued leave in greater quantity at the time of transition from the Army than might otherwise be granted.  It also states that Soldiers could sell or cash in no more than 60 days of leave during their military career.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he did not take leave from 1 September 2007 through 9 September 2007.

2.  The evidence of record shows that the applicant had a leave balance of 36.5 days as of 31 August 2007.  He earned 30.5 days from 1 September 2007 through 4 September 2008 (his separation date), at the rate of 2.5 days per month from 1 September 2007 through 31 August 2008 and 0.5 days for the period from 1 September 2008 to 4 September 2008.  He had a total leave balance of 67 days as of his separation date.  He also used 18 days of ordinary leave during his service in Iraq.  That left him with a leave balance of 49 days.  According to the DFAS Statement of Military Leave Account, he used 49 days of transition leave upon his release from active duty.

3.  It is unclear why the applicant was charged with ordinary leave from 1 September 2007 to 9 September 2007.  He was serving in Iraq during that period and both his platoon sergeant and platoon leader certified that he did not take leave during that period.  Additionally, there is no indication on any of his LES that he lost leave as a result of exceeding the maximum leave balance allowed at the end of the FY.

4.  In view of the foregoing evidence, it appears that the applicant was improperly charged with 9 days of excess leave and lost pay and allowances as a result of this charge.  Therefore, it would be appropriate to credit the applicant with 9 days of leave and re-audit his military pay account to determine if he is entitled to back pay and allowances as a result of this credit.

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:
	a.  correcting the applicant's records to show he was present for duty and did not take 9 days of leave from 1 September 2007 to 9 September 2007; and

	b.  having DFAS audit the applicant's pay account to determine if he is entitled to any pay and allowances as a result of this correction.



      _______ _   _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)                                         AR20090014142



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ABCMR Record of Proceedings (cont)                                         AR20090014142



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