IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110019779 


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 Leave and Earnings Statement (LES) to credit him with 15.5 days of lost accrued leave. 

2.  The applicant states while he was assigned to Special Operations Command, Korea (SOCKOR) he was unable to utilize all of his accrued leave (15.5 days) due to the following circumstances which prevented him from creating a separation plan:

* He was awaiting disposition of a case with the Department of the Army Selective Continuation Board
* There were personnel shortages in his section at SOCKOR which prevented him from taking leave before he left Korea and separated from the Army
* The operational tempo at a Theater of SOCKOR prevented him from taking leave 

3.  The applicant provides three memoranda and one email.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error 
or injustice.  This provision of law also allows the Army Board for Correction of 

Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having had prior enlisted service and service as a U.S. Army Reserve (USAR) and Army National Guard commissioned officer, the applicant entered active duty, apparently in a USAR Active Guard Reserve status, on or about     22 September 2002.  He is currently serving in the USAR in specialty 38A (Civil Affairs) and holds the rank/grade of lieutenant colonel/O-5.

3.  His Officer Record Brief shows he was assigned to the Special Operations Command, Yongsan, Korea, on 4 December 2006.

4.  His records contain Orders Number C-09-816383, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 15 September 2008, which scheduled him to separate on 14 November 2008.  A DD Form 214 for this period is not available.

5.  His records contain Orders Number C-11-820402, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 26 November 2008, which reassigned him from Korea to MacDill Air Force Base, FL, effective 
25 November 2008.

6.  His records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was assigned to Schofield Barracks, HI, from 
8 December 2008 to 31 January 2011.  

7.  He provided a memorandum issued by the Deputy Commanding General of the U.S. Army Installation Command, San Antonio, TX, Brigadier General (BG) A___, dated 16 November 2010, with the subject line "Inquiry Request for Recoupment of Annual Leave."  This memorandum stated:

	a.  the applicant submitted an official request for the recoupment of 15.5 days of personal leave that was surrendered upon release from active duty on 
14 November 2008; and


	b.  while under the BG's command in SOCKOR the applicant was unable to utilize all of his accrued leave due the following mitigating circumstances:

* The applicant was awaiting the disposition of his case with the Department of the Army Selective Continuation Board
* Personnel shortages in his section in SOCKOR prevented him from taking leave before he left theater and separated from the Army
* Operational tempo at a Theater of Special Operations Command prevented him from taking leave while in theater

8.  He provided a memorandum, issued by an official at the U.S. Army Pacific, Headquarters and Headquarters Battery, S-1, Fort Shafter, HI, dated 6 January 2010.  This memorandum stated:

	a.  this official supported the Fort Shafter military pay office reinstating the applicant's 15.5 days of lost leave; and

	b.  the decision to support this request was based on a general officer memorandum from the applicant's previous commander, a statement of military leave account generated by the Schofield Barracks Transition Office, and an inquiry memorandum for reimbursement submitted to the Fort Shafter military pay office.

9.  He submitted a copy of an email from an official at the Defense Finance and Accounting Service (DFAS), dated 13 May 2011.  This email stated that the applicant would have to petition the ABCMR because there was no legal authority for DFAS to pay him for more than 60 days of leave in a career.  The official further stated that leave management rests solely with the Soldier and it was up to the Soldier to ensure leave is utilized properly.

10.  On 10 November 2011, an advisory opinion was obtained from the Compensation and Entitlements Division, Office of the Deputy Chief of Staff (Army G-1), in the processing of this case.  An official at the Army G-1 stated:

	a.  the applicant's documents concerning his request for retroactive recoupment/special leave accrual (SLA) for 15.5 days of lost annual leave at the end of fiscal year (FY) 2008 had been reviewed.  The Army G-1 recommended disapproval of the request; 

	b.  in accordance with Title 10, U.S. Code, section 701(f), SLA may be granted 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 or imminent danger, and Soldiers are not authorized annual leave as a consequence of duty assignments in support of contingency operations; 

	c.  Army Regulation 600-8-10 (Personnel Absences - Leave and Passes) cautions Soldiers who maintain a maximum leave balance year to year that they risk loss of leave over the maximum carryover should operational situations prevent them from taking leave; and 

	d.  this appears to be the case with the applicant's loss of leave at the end of FY 2008.  He indicated that he did not take leave or was prevented from taking leave due to awaiting disposition of a Selection Continuation Board, personnel shortages, and operational tempo.  While all of these things may have contributed to his inability to take leave they do not fall within the parameters of the law to approve SLA.

11.  He submitted a memorandum, dated 6 December 2011, in response to the advisory opinion from the Army G-1, wherein he:

   a.  requested his case be delayed until a corrected advisory opinion could be obtained from the Army G-1; and
   
   b.  the advisory opinion from the G-1 was in error because it dealt with SLA, and not ordinary leave accrual and the disposition of recoupment.

12.  On 16 February 2012, a second advisory opinion was acquired from the Compensation and Entitlements Division of the Army G-1, in the processing of this case.  The official stated:

	a.  the additional information provided concerning the applicant's request for retroactive leave recoupment of 15.5 days of annual leave lost at the end of FY 2008 had been reviewed; 

	b.  based on the review the Army G-1 was unable to change the recommendation that his request for recoupment of leave be disapproved; and

	c.  the circumstances which caused the loss of leave are unfortunate; however, he still had the responsibility to properly manage his leave usage.

13.  On 17 February 2012, he received an email from a different official at the Compensation and Entitlements Division of the Army G-1.  This official stated:

	a.  the information the applicant provided to the Army G-1 was well staffed for review; unfortunately, the determination was not to amend or change the original decision; 

	b.  the Army G-1 was involved with considerable discussion in regard to his case and references were made to similar lost leave/re-credit cases received in that office which were not supported;

	c.  the issues the BG brought up in his memorandum were discussed in detail and determined to be similar to the justifications presented in other similar cases in that reference was made to personnel shortages and operational tempo;

	d.  while the applicant had added the issue of awaiting a Selective Continuation Board decision, this did not prevent his use of leave.  The Army G-1 could not see where actions by the Army caused him to lose leave; 

	e.  the issues raised by the BG were valid; however, they did not result in the loss of leave.  Rather, he cashed out leave previously which limited the number of days that could be cashed out at the time of separation in 2008.  He carried a leave balance of 45 days, which is not unreasonable, but contributed to the number of days lost; and 

	f.  personnel shortages in Korea are really no different than anywhere else in the Army.  Like most SLA cases, lost leave is primarily due to Soldier leave management.  In the applicant's case, he had a known leave balance, he was aware of the number of leave days he had previously cashed out, and he was aware of his pending separation action.

14.  He submitted a memorandum of rebuttal to the ABCMR, dated 28 February 2012, in reference to a second (corrected) advisory opinion that was obtained from the Army G-1 in the processing of this case.  He stated:

	a.  he disagreed with the second advisory opinion rendered by an official at the Army G-1 because the context of that opinion suggests that he erred in the management of his leave; 

	b.  the opinion still did not take into account that he had 30 days of accrued leave in a 120 day period.  Furthermore, the BG stated and verified that mitigating circumstances affected the utilization of the 30 days of leave he had accrued; and 

	c.  the latest advisory opinion still presumes the SLA scenario, not ordinary leave and how it could be reaccredited to his LES as leave or a monetary reimbursement. 

15.  Army Regulation 600-8-10 states:

	a.  by law, payment of accrued leave is limited to 60 days one time during a military career, unless earned in a missing status, earned by a Reserve Component, retired Reserve, or retired member of the Regular Army while serving on active duty in support of a contingency operation, or earned by Soldiers who die because of an injury or illness incurred while serving on active duty in support of a contingency operation; 

	b.  accrued leave that exceeds 60 days at the end of the fiscal year will be lost except for SLA to provide relief to Soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility.  SLA authorizes Soldiers to carry forward up to 90 days of leave at the end of a fiscal year.  Leave accrual in excess of 60 days is credited only for use, not for payment; and

	c.  the intent of SLA is to provide relief to Soldiers who are not allowed leave when undergoing 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.

16.  Department of Defense Financial Management Regulation 7000.14-R states in pertinent part that a military member is entitled to receive payment for no more than 60 days of accrued leave during a military career.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant previously cashed out leave before his discharge in 2008, which limited the number of days that could be cashed out at the time of separation.  Additionally he carried a leave balance of 45 days, which contributed to his number of lost days.

2.  He stated he was unable to take leave because he was awaiting the disposition of his case with the Department of the Army Selective Continuation Board, personnel shortages in his section in SOCKOR prevented him from taking leave before he left theater and separated from the Army, and operational tempo prevented him from taking leave while in theater.  However, he has not shown that he was prohibited from taking leave, nor that he requested and was denied the opportunity to take leave.

3.  Army regulations state that Soldiers who build their leave balance to the maximum level risk losing their leave should a situation occur that prevents or delays leave use.  Additionally, the law mandates that a military member is entitled to receive payment for no more than 60 days of accrued leave during a military career.

4.  Only the conditions which pertain to SLA would have permitted the applicant to recoup his lost leave; however he is not eligible for SLA because his service in SOCKOR did not meet the prescribed regulatory requirement for SLA, as he acknowledges.

5.  While the applicant's situation is understandable, it is not unique.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110019779



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ABCMR Record of Proceedings (cont)                                         AR20110019779



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