IN THE CASE OF:
BOARD DATE: 9 December 2010
DOCKET NUMBER: AR20100025463
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 an exception to policy and payment for accrued leave in excess of 60 days at retirement.
2. The applicant states he retired under the sanctuary program allowing qualified Reserve Component (RC) personnel to retire from the Active Component (AC) under the active duty payroll system. He states from November 2008 through October 2009, he did everything he could to transfer his RC leave so he could use it. He claims the leave was not transferred and as a result he was never given the opportunity to use it.
3. The applicant provides the following documents in support of his application:
* Self-Authored Memorandum to commander requesting leave
* Commander Memorandum, dated 25 February 2010
* Memorandum to Defense Finance and Accounting Service (DFAS), dated 8 December 2008
* Reserve Leave Report, dated 11 February 2009
* Retirement Orders
* Transmittal of Pay Documents, dated 1 July 2009
* DA Form 2142 (Pay Inquiry), dated 11 August 2009
* Electronic Mail (e-mail) traffic on leave transfer between RC and AC
* Leave and Earnings Statements
* Retirement Final Pay Brief Sheet, dated 31 December 2009.
CONSIDERATION OF EVIDENCE:
1. On 31 December 2009, the applicant was released from active duty for the purpose of voluntary retirement and on 1 January 2010, he was placed on the Retired List in the grade of chief warrant officer four/W-4 (CW4/W-4).
2. The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his retirement shows he was retired under the provisions of paragraph 6-13c (1), Army Regulation 600-8-24, by reason of sufficient service for retirement.
3. The DD Form 214 further confirms he completed a total of 20 years,
5 months, and 17 days of active military service, and item 16 (Days Accrued Leave Paid) contains the entry 0.
4. The applicants pay record shows he was been paid for 60 days of accrued leave in 1991.
5. During the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Deputy Chief of Staff G-1. It states that based on a review of the application, accompanying documents and the statutory authority in Title 10 of U.S. Code, Section 501, the applicant was not eligible to cash out additional annual leave at the time of retirement from active duty on 31 December 2009. He cashed out 60 days of accrued annual leave in 1991, and the law provides for cashing out a maximum of 60 days during a military career. The advisory opinion further indicates the applicant fails to meet any of the exception requirements identified in the governing law.
6. On 18 November 2010, the applicant responded to the G-1 advisory opinion. He indicated he believed he met the criteria for an exception to the leave payment limitations of the law based on the fact he was a member of a RC serving on active duty in support of a contingency operation. He cites the orders placing him on active duty in support of Operation Iraqi Freedom during the periods between March 2007 and May 2009, and orders placing him on extended active duty between May and December 2009. He also cites a RC leave report showing a leave balance of 39.5 days earned as a RC Soldier while serving on active duty in support of contingency operations. He concludes by stating that during the period between November 2008 and November 2009, he did everything in his power to resolve the issue and simply ran out of time before retiring.
7. Army Regulation 600-8-24 (Officer Transfers and Discharges) contains the policy for active duty retirements in chapter 6. Paragraph 6-13c (1) states a Regular Army (RA) or RC commissioned officer with 20 years of active federal service (of which 10 years is active commissioned service) may on their request and the approval of the Secretary of the Army be retired (10 USC 3911). A U.S. Army Reserve (USAR) officer does not have to be serving on active duty in a commissioned status or in an active USAR status to be eligible under this paragraph.
8. Title 10 of the United States Code, Section 501 contains the legal authority for payments for unused accrued leave. It states the number of days of leave for which payment is made may not exceed 60 days, less the number of days for which payment was previously made under this section after 9 February 1976. This limitation does not apply with respect to leave accrued by the following:
a. a member of a RC while serving on active duty in support of a contingency operation;
b. a member of the armed forces in the Retired Reserve while serving on active duty in support of a contingency operation;
c. a retired member of the RA, Regular Navy, Regular Air Force, or Regular Marine Corps or a member of the Fleet Reserve or Fleet Marine Corps Reserve while the member is serving on active duty in support of a contingency operation; or
d. a member of a reserve component while serving on active duty, full-time National Guard duty, or active duty for training for a period of more than 30 days but not in excess of 365 days.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should be paid for accrued leave in excess of 60 days has been carefully considered. However, there is insufficient evidence to support this claim.
2. By law payment of accrued leave is limited to 60 days during a career. There are exceptions for RC personnel serving on active duty in support of contingency operations or serving on active duty for training or full time National Guard duty.
3. In this case, the evidence confirms the applicant voluntarily elected to enter extended active duty for the purpose of obtaining sufficient service for active duty retirement. It further shows he voluntarily requested retirement from active duty. As confirmed by the G-1 advisory opinion, he was not serving in any of the identified RC exception categories at the time of retirement. Therefore, since the applicant previously received payment for 60 days of accrued leave in 1991 there is an insufficient evidentiary basis to support granting an exception to policy as requested by the applicant.
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) AR20100025463
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100025463
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120004044
The applicant requests an exception to policy for payment for 72.5 days of accrued leave. The statement that finance would pay him for his 72.5 days of leave under an exception to policy came from a call his G1 in Kuwait made back the States. 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.
ARMY | BCMR | CY2012 | 20120021108
The applicant states he: * lost 17.5 days of leave due to "Use/Lose" in FY 2010 * was assigned to the Warrior Transition Unit (WTU) on 19 May 2010 * was not afforded an opportunity to take leave prior to 1 October 2010 due to the number of appointments and the time between the appointments * requested permission to submit an exception to policy prior to his medical retirement on 27 May 2011, but his command denied it * is requesting an exception to policy as a Reservist who served on active...
AF | BCMR | CY2003 | BC-2002-04097
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2002-04097 COUNSEL: None HEARING DESIRED: No _________________________________________________________________ APPLICANT REQUESTS THAT: His retirement date of 8 December 2002 be changed to 8 January 2003 to allow him to take his 30 days of leave. On 18 October 2002, 1 AF/CC requested a 60-day extension to his recall to active duty (Atch 2). Recommend that the AFBCMR allow the member...
ARMY | BCMR | CY2013 | 20130020107
On 2 April 2013, HRC disapproved his request for PDMRA under GA2 and opined that the applicant was not eligible for PDMRA benefits because the law governing PDMRA benefits required that a minimum of 50% of time be spent with boots on the ground in Afghanistan, Iraq, or Kuwait. Although the applicant has not provided any evidence to show that he was unaware of or not properly counseled in regard to PDMRA, it does not appear that he was entitled to accrue PDMRA benefits during his deployment...
ARMY | BCMR | CY2004 | 20040007233C070208
On 12 September 2003 the applicant requested 128 days of leave from 25 January 2004 to 31 May 2004, 108 days of which were accrued leave, and 20 days of which were permissive TDY (25 January 2004 to 13 February 2004). The MC was further informed that there were no provisions under the law that allowed Soldiers to cash in leave after separation from military service; however, the Army Board for Correction of Military Records had the authority to approve request for exceptions to policy. ...
ARMY | BCMR | CY2006 | 20060000805C070205
The applicant also essentially stated that at the time of his discharge from the Army National Guard and transfer to the Retired Reserve, he had accrued approximately 100 days of leave. The applicant’s leave and earning statement for the period 1 to 30 September 2003 shows, in pertinent part, that he had a leave balance of 99 days. Records provided by DFAS indicate that the applicant was not paid for 39 days of leave.
ARMY | BCMR | CY2013 | 20130016017
Although the Title 10, U.S. Code, section 12302 order for the period 22 June 2011 to 20 June 2012 is a qualifying order for PDMRA consideration, the applicant has been on continuous back-to-back orders since 28 September 2007 and the service periods have not been adjudicated; therefore, there is no error to correct or adjust under GA2. It is the Soldier's responsibility to schedule their usage of any earned PDMRA while at their mobilization permanent duty station or return to the...
ARMY | BCMR | CY2004 | 20040001370C070208
Antonio Uribe | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. The evidence shows that the applicant did plan to use 22 days of accrued leave between 10 May 2003 and 31 May 2003, but that his intention was thwarted because of his medical emergency. Nonetheless, the applicant, although apparently on convalescent leave for 10 days from 6 May 2003 to 15 May 2003, although not considered authorized accrued leave as such, was...
ARMY | BCMR | CY2009 | 20090000725
It further shows that the applicant took leave upon his return from deployment and that he lost 15 days of leave. 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...
ARMY | BCMR | CY1996 | 9607751C070209
The applicant requests, in effect, correction of his military records by reinstating 12 days of leave that he lost at the end of Fiscal Year 1995. The applicant states, in effect, that he is entitled to the 12 leave days that were not reinstated prior to his leaving active duty on 1 March 1996. A staff member of the Board was informally advised by the authorities at the PERSCOM that they have no record of receiving the applicants case from his command; that a soldier who was deployed for...