IN THE CASE OF:	  

		BOARD DATE:	  25 March 2010 

		DOCKET NUMBER:  AR20090020301 


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 the 19 days of leave restored to him by the Army Board for Correction of Military Records (ABCMR), which he subsequently lost again, be again restored to him.

2.  The applicant states the ABCMR restored 19 days of leave he lost due to predeployment activities.  While the Defense Finance and Accounting Service (DFAS) was directed to correct his records to reflect the 19 days of lost leave, his leave and earnings statements (LES) did not reflect the addition of that leave.

3.  Since his leave balance was programmed into his retirement leave projection, he did not want to take any leave until he was sure it had been added to his leave balance.  He believed the only proof that the 19 days of leave was restored was his LES.

4.  When he did not see the leave restored on his LES, he submitted a pay inquiry.  In response he was told that while the 19 days had been credited to his leave balance, he lost the leave once again because it was in excess of the 
120-day maximum leave balance carry-over at the end of the fiscal year.

5.  The applicant believes that the loss of his leave was due directly to DFAS not correcting his records as directed by the ABCMR in a timely manner.

6.  The applicant provides ABCMR Docket Number AR20080013908, dated 23 July 2009, with allied documents; a letter from DFAS, dated 4 November 2009; and copies of his LES.

CONSIDERATION OF EVIDENCE:

1.  On 23 July 2009, the ABCMR determined in Docket Number AR20080013908 that although the applicant, an Active Guard Reserve officer in the rank of chief warrant officer five, had earned the majority of his leave in excess of 60 days while he was not assigned to a deployable unit, he could have taken all of his accrued leave during the month of September 2007 if he had not been assigned to a unit in predeployment training during that time.  As a result, the ABCMR recommended that the applicant's records be corrected by adjusting his 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 authority.

2.  On 6 August 2009, the Army Review Boards Agency, St. Louis, MO, furnished the applicant a certificate informing him that his leave balance was adjusted to show restoration of 19 days of leave lost at the end of fiscal year 2007 under the provisions of the special leave accrual authority.

3.  On 4 November 2009, DFAS sent the applicant a letter informing him that it had credited him with 19 days of leave based on the ABCMR directive.  However, he lost that leave at the end of Fiscal Year 2009 because it was in excess of the 120-day maximum leave carry over.

4.  U.S. Army Human Resources Command Orders C-10-919482, dated 28 October 2009, show the applicant was reattached to a separation and transfer point for separation processing not later than 1 December 2009.  His scheduled date of retirement was 31 July 2010.

5.  The LES provided by the applicant do not show any restored leave.  These LES cover the period 1 September 2009 through 30 October 2009.

6.  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 a 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.

7.  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 of than 365 days.

8.  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.

9.  Department of Defense Instruction 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 ABCMR restored the 19 days of leave the applicant lost because the applicant did not have the opportunity to use the leave during the last month of the fiscal year because he was assigned to a unit in training for deployment.

2.  The ABCMR recommended approval of the applicant's request on 23 July 2009 and the applicant was provided notification that his records had been corrected on 6 August 2009.  It was not until 4 November 2009 that DFAS notified the applicant by letter informing him that it had credited him with 19 days of leave based on the ABCMR directive.  However, he lost the restored leave on 30 September 2009 at the end of that fiscal year.

3.  In summary, because the leave restored by the ABCMR could not be officially credited to the applicant (as reflected in his LES) prior to the end of the fiscal year, the loss of the restored leave is an injustice that should now be corrected by its restoration as an exception to policy.

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 2009.



      __________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)                                         AR20090020301



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ABCMR Record of Proceedings (cont)                                         AR20090020301



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