IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110016213 


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, in effect, restoration of 17.5 days of leave lost at the end of fiscal year (FY) 2010.

2.  He states he lost 17.5 days of leave due to "Use/Lose" in FY 2010.  He arrived at a Warrior Transition Unit (WTU) on 19 May 2010.  While assigned to the WTU, he 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.  He asked to submit an exception to policy prior to his medical retirement on 27 May 2011, but his command denied him the opportunity to submit a personnel action request.

3.  He provides:

* orders
* a printout of his JUMPS-RF Leave and Earnings Statement (LES) History Display
* a printout of his history of appointments
* a printout documenting his medical retention processing
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 May 2011


CONSIDERATION OF EVIDENCE:

1.  Following periods of service in the Army National Guard and Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR).  On 3 November 2005, he was ordered to active duty in support of Operation Enduring Freedom.

2.  On 25 March 2010, the U.S. Army Human Resources Command, St. Louis, MO, issued Orders A-03-009338 directing his retention on active duty to complete medical care and treatment.  The orders assigned him to Headquarters, Warrior Transition Battalion, Fort Knox, KY.

3.  On 11 May 2010, Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, issued Orders A-05-014196 directing his retention on active duty to complete medical care and treatment.  The orders assigned him to Company A, Warrior Transition Battalion, Fort Eustis, VA.

4.  On 27 May 2011, he was retired under the provisions of Army Regulation
635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of permanent disability.  Item 18 (Remarks) of the DD Form 214 issued at the time shows he served in Afghanistan from 19 March 2006 through 1 May 2007.

5.  His interactive Personnel Electronic Records Management System (iPERMS) record does not include documentation pertaining to his annual leave balance.

6.  He provides:

	a.  a JUMPS-RF LES History Display, dated 1 October 2010, that shows his leave balance brought forward was 98 days and his current balance was 99.9 days;

	b.  a JUMPS-RF LES History Display, dated 15 October 2010, that shows his leave balance brought forward was 80.5 days and his current balance was 82 days; and

	c.  a list of appointments showing he kept numerous appointments each month beginning 20 May 2010 through 27 May 2011.

7.  During the processing of this case, on 27 September 2011, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.


	a.  The advisory official stated special leave accrual (SLA) is based on Title 10, U.S. Code, section 701f.  This section limits SLA to Soldiers who serve on active duty for a continuous period of at least 120 days in an area in which they are entitled to special pay for duty subject to hostile fire and to Soldiers not authorized annual leave due to duty in support of a contingency operation.  Assignment to a WTU for medical care does not meet the parameters for SLA.

	b.  The advisory official further stated the applicant was assigned to a WTU in May 2010, which made use of leave difficult due to medical appointments.  However, he had from October 2009 through May 2010 to use annual leave in order to keep his leave balance below the 75-day maximum FY carryover.  Army Regulation 600-8-10 (Leave and Passes), paragraph 2-2b(2), cautions Soldiers who maintain a maximum 75-day leave balance that they risk loss of leave over 75 days if the operational situation prevents them from taking leave before the end of the FY.  This would also include a Soldier's illness, injury, hospitalization, or assignment to a WTU that made utilization of leave over 75 days by the end of the year impossible.

	c.  The advisory official recommended denial of his request to restore 17 days of leave lost at the end of FY 2010.  

8.  On 27 September 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

9.  Title 10, U.S. Code, section 701, states a member may not accumulate more than 60 days of leave.  Leave in excess of 60 days will be lost at the end of the FY.  As an exception, Soldiers who:

	a.  serve on active duty for a continuous period of at least 120 days in an area in which the member is entitled to special pay (imminent danger/hostile fire pay);

	b.  are assigned to a deployable ship or mobile unit or to other duty designated for the purpose of this exception; or

	c.  on or after 29 August 2005, perform duty designated by the Secretary of Defense as qualifying duty for purpose of this exception.

10.  The 2008 National Defense Authorization Act (NDAA) authorized a temporary increase in the maximum leave balance to 75 days.  The 2011 NDAA extended the temporary increase into 2013.


DISCUSSION AND CONCLUSIONS:

1.  From the time the applicant returned from deployment to Afghanistan in 2007 until his assignment to a WTU in 2010, he had ample time to take sufficient leave to avoid exceeding the maximum balance established by law.  It was his responsibility to manage his leave to avoid losing any days over the maximum balance.

2.  There is no evidence showing he was unfairly prevented from using leave prior to his assignment to a WTU.  Further, there is no evidence showing his service subsequent to his return from Afghanistan qualified him for an exception to the maximum leave balance by virtue of receiving special pay or assignment to other duty designated for the purpose of exception to the maximum leave balance.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110016213



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ABCMR Record of Proceedings (cont)                                         AR20110016213



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