IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110003997 


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 reinstatement of 58 days of leave lost.

2.  The applicant states:

* 58 days of accrued leave was taken from him at the end of Fiscal Year (FY) 2008
* He was deployed to Southwest Asia in support of Operations Enduring Freedom/Iraqi Freedom (OEF/OIF) from 4 February 2004 to
16 September 2008
* He was assigned to the Warrior Transition Unit (WTU) at Fort Eustis, VA from 27 October 2008 to 24 August 2010
* He believes it was an oversight on his deployment orders and medical records because no one has ever been deployed for such a long continuous period of service

3.  In a letter, dated 25 August 2010, he states:

	a.  during his Southwest Asia deployment he accumulated 154 Post Deployment/Mobilization Respite Absence (PDMRA) days and 153 days of annual leave.  At the end of FY 2009 he lost 58 days of leave.  He arrived
in-country on 18 September 2008 and he was assigned to the WTU at Fort Eustis on 27 September 2010 for 1 year, 11 months, and 6 days.  During this time he had 3 major surgeries and several minor procedures.  Based on the 


WTU policies and procedures that all appointments must be kept, he was unable to take all of his accrued leave.  In addition, he had appointments 3 to 5 days per week at McDonald Army Health Center, Fort Eustis and the Naval Medical Center Portsmouth, VA.  The consequences for missing appointments were severe.

	b.  he was unable to take leave while on deployment because a memorandum stated a Soldier can carry 120 days of leave provided that Soldier served/deployed in a hostile environment for 120 days or more.  He was assigned to the Surface Deployment and Distribution Command with the 597th, 598th, and the 599th Transportation Terminal Group.  The group rotated every 
6 months and each commander stated the same, that Soldiers are allowed to save their leave.  He was advised by his noncommissioned officer (NCO) in charge and the S-1 shop that all leave requests would be disapproved because the units were losing key mission-essential personnel and senior NCOs and he would receive all his leave days at the end of his mission.

	c.  on 26 October 2009, he was given out processing papers and advised he would be released from active duty.  He informed his squad leader about his leave situation and the squad leader advised him to speak with human resources personnel.  The human resources personnel did the necessary paperwork.  He inquired on the status of his leave and he would get a different answer each time.  His commander also refused to sign the special leave accrual memorandum. 

	d.  on 12 December 2009, he started his PDMRA leave.  During this period he constantly checked to see the status of his leave lost days.  On 5 January 2010, he filed a formal Inspector General complaint.  On 17 May 2010, he started his 95 days of annual leave and he was told the human resources personnel were waiting for an approval that should happen before the end of the 95 days.  On
20 August 2010, he was informed his leave was denied and he would be released from active duty on 24 August 2010.

	e.  his leave request was denied because he was not qualified under the
120 days carryover.  However, leave days were accrued while he was deployed and carried over until 2009, but they were taken and not returned.  He was sent back to his unit without any other recourse to take.  He reached the mandatory retirement age because of the lengthy delay in processing the paperwork and waiting to get an answer.  He is at a financial disadvantage because his paperwork for his retirement pension was also delayed awaiting an answer.  He lost approximately 3 months of pay with entitlements.  He was deployed for 4 years, 6 months, and 15 days and he spent 1 year, 10 months, and 20 days in the WTU, for a total of 6 years, 11 months, 


and 7 days.  He has no other source of income and losing his leave days has left him in a very bad financial situation.

4.  The applicant provides:

* his deployment orders
* his reassignment orders
* extract of medical records
* a letter from a Member of Congress, dated 29 March 2011

CONSIDERATION OF EVIDENCE:

1.  Having prior inactive service in the Army National Guard and the U.S. Army Reserve (USAR), the applicant was ordered to active duty on 9 January 2004 from the USAR in support of OEF/OIF.  He served in Kuwait from 31 January 2004 to 22 October 2008.  On 24 August 2010, he was honorably released from active duty at the completion of required active service and transferred to a USAR unit at Fort Totten, NY.  He completed 6 years, 7 months, and 11 days of creditable active service during this period of service.

2.  Item 16 (Days Accrued Leave Paid) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 August 2010 shows the entry "100."

3.  He was placed on the retired list on 25 August 2010 in the rank/grade of master sergeant (MSG)/E-8.

4.  On 27 May 2010, the applicant submitted a DA Form 4187 (Personnel Action) requesting consideration for special leave accrual for 58 days of leave lost.  His chain of command recommended approval of his request.

5.  On 19 September 2010, the Commander, Human Resources Command disapproved the applicant's request.  The authority stated:

	a.  based on the review of the applicant's documents he does not qualify for the retention and carryover of leave due to his surgeries, minor procedures, medical appointments and physical therapy.

	b.  as prescribed by Title 10, U.S. Code, section 701f, he is only eligible to retain accrued leave up to a total of 120 days if deployed for 120 days or more.

	c.  there currently is no exception to policy.


6.  In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.  The advisory official recommends the applicant be re-credited/receive payment for 22.5 days of leave lost at separation in 2010.  The official states:

	a.  the Defense Finance and Accounting Service (DFAS) documents show the applicant's combat zone leave carryover (special leave accrual) was capped at 97.5 days as of 30 September 2008.  He only took 3 days of leave in FY 2009, losing 27 days.  In FY 2010, he earned 27 days (1 October 2009 through
24 August 2010) accruing a leave balance of 124.5 days of leave.  However, he only took 100 days of transition leave at separation and he received payment for 2 days leave.  An unused leave balance of 22.5 days remained at separation, which he could have used as part of his transition leave period or received payment for at separation.

	b.  the applicant was not prevented from taking leave in 2009; therefore, all leave lost in FY 2009 was the result of him not using the leave and it should not be re-credited.  However, leave lost in 2010 was primarily the result of a shortcoming in the software used for the Reserve Component Leave and Earnings Statement (LES) that prevents the leave balance listed on the LES from being greater than 99.9 days of leave.  Unless a leave audit was conducted on the applicant's leave at separation, leave earned from November 2009 through August 2010 would not be reflected on his LES to show a leave balance of 124.5 days.  His LES showed a 100-day leave balance, which is what he took as transition leave at separation, rather than the entire 124.5 days, even though he had time before the end of the FY to use it all or should have received payment for unused days at separation.  Consequently, the 22.5 days lost in 2010 should be re-credited for payment.  Payment should be computed based on full pay and allowances.  His DD Form 214 should also be corrected to reflect the additional 22.5 days of accrued leave.

7.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond.

8.  Army Regulation 600-8-10 (Leave and Passes) provides:

   a.  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.
   
   b.  the intent of special leave accrual is to provide relief to Soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility.
   
   c.  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.  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.  No additional criteria is required under this paragraph for approval.

	e.  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 use of leave.

	f.  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.
           (4) Prevented from using leave through the end of the FY because of
                deployment.

	g.  exceptions for special leave accrual are not permitted.

	h.  special leave accrual 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 special leave accrual).

	i.  commanders in the grade of O–5 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 special leave accrual until after the FY, when it becomes known how much leave Soldier will lose.


	j.  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.

	k.  the Commanding General, Army Human Resources Command, is the approval authority for requests for special leave accrual.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant mentions PDMRA days in his 25 August 2010 letter to the Board, it appears he is requesting reinstatement of 58 days of normal leave.  He contends he was unable to take all of his accrued leave due to medical issues.

2.  The advisory opinion points out that DFAS records show the applicant's combat zone leave carryover (special leave accrual) was capped at 97.5 days as of 30 September 2008.  He only took 3 days of leave in FY 2009, losing 27 days.  
He was not prevented from taking leave in 2009; therefore, all leave lost in FY 2009 was the result of him not using the leave and it should not be re-credited.

3.  The applicant states, during his assignment to the WTU, he had surgeries and appointments which precluded his taking leave.  There is no evidence in the record, and the applicant has provided no evidence to show he was prevented from using accrued leave.

4.  DFAS records also show he earned 27 days (1 October 2009 through
24 August 2010) in FY 2010, accruing a leave balance of 124.5 days of leave.  However, he only took 100 days of transition leave at separation and he received payment for 2 days of leave.  

5.  An unused leave balance remained at separation of 22.5 days.  However, the advisory opinion states leave lost in 2010 was primarily the result of a shortcoming in the LES software that prevented the leave balance listed on the LES from being greater than 99.9 days of leave.  Unless a leave audit was conducted on the applicant's leave at separation, leave earned from November 2009 through August 2010 would not be reflected on his LES to show a leave balance of 124.5 days.  His LES showed a 100-day leave balance which is what he took as transition leave at separation, rather than the entire 124.5 days.  Consequently, the 22.5 days lost in 2010 should be re-credited for payment and payment should be computed based on full pay and allowances.  In addition, his DD Form 214 should be corrected to reflect the additional 22.5 days of accrued leave. 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  _____x__  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  re-crediting him 22.5 days of leave;

	b.  deleting from item 16 of his DD Form 214 for the period ending 24 August 2010 the entry "100" and replacing it with the entry "124.5"; and

	c.  paying him for 22.5 days of leave (computed based on full pay and allowances)

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reinstating an additional 35.5 days of leave.



      ___________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)                                         AR20110003997



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ABCMR Record of Proceedings (cont)                                         AR20110003997



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