IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20110021275 


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, that he be paid for 114.5 days of accrued leave he lost at the time of retirement.

2.  The applicant states, in effect, that he was unjustly denied transition leave twice and was then informed at the time of retirement by finance personnel that he could not be paid for his unused leave because he had already sold 60 days and that he could not take it because he had reached his retirement date.  He further states that the denial of his transition leave and his request for retirement was willfully and unjustly delayed and denied.    

3.  The applicant provides a two-page letter explaining his application, copies of his retirement certificates, copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), a copy of his request from his congressional representative, a copy of a memorandum of lateness from his commander, copies of his leave and earnings statements from August 2010 to June 2011, a copy of his installation clearance record, and a copy of his retirement orders. 

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the U.S. Marine Corps from 1 October 1984 until he was honorably discharged in the pay grade of E-5 on 15 January 1998 due to non-retention on active duty.  He had served 13 years, 3 months, and 15 days of active service.  His DD Form 214, item 16 (Days Accrued Leave Paid) contains the entry, “SLB 15.0 RLB 38.0.”

2.  He enlisted in the U.S. Army Reserve (USAR) and on 15 October 2001 he was ordered to active duty in support of Operation Enduring Freedom. He was promoted to the pay grade of E-6 on 18 April 2002.  He served on active duty until he was honorably released from active duty (REFRAD) at Fort Eustis, Virginia on 10 April 2006.  Item 16 of his DD Form 214 shows he was paid for 45.5 days of leave.

3.  On 11 April 2006, he enlisted in the Regular Army and was transferred to Fort Stewart, Georgia.  He deployed to Iraq in 2007 and in 2010. 

4.  On 30 June 2011, he was retired and was transferred to the Retired List in the pay grade of E-6 on 1 July 2011.  He had served 23 years of active service.

5.  A review of his official re cords failed to reveal any documents regarding his request for leave.  There is also no indication in those records to indicate that he lost leave. 

6.  Army Regulation 600-8-10 serves as the authority for leaves and passes.  It states, in pertinent part, that Congress has provided compensation (no more than 60 days in a military career) for Soldiers who were not able to use their leave because military requirements prevented it.  Soldiers will not be required to use leave immediately prior to separation simply for the purpose of reducing leave balances.  On the other hand, use of leave as an extra money program defeats the intent of Congress to provide for the health and welfare of Soldiers.  It should not be used either as a method of compensation or as a career continuation incentive.  It is specifically intended that large leave balances will not be accrued expressly for settlement upon release from active duty.  Additionally, leave will not be granted that will interfere with timely processing or transition.

7.  Department of Defense (DOD) Financial Management Regulation (Also known as the DOD Pay Manual) provides, in pertinent part, that beginning on 10 February 1976, a military member may not be paid for more than 60 days of accrued leave during a career.  An exception to that provision was approved effective 2 August 1990, which allowed Reserve and Retired Component members who were called to active duty during the Persian Gulf Conflict to be paid for accrued leave over the 60-day limit. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not authorized to be paid for his accrued leave at the time of his separation because he was not authorized to be paid for more than 60 days of leave in a career and he had already cashed in 60 days of leave during prior separations (although it appears he may have had additional special leave paid for during his U.S. Marine Corps service).

2.  While it is unfortunate that the applicant may have lost some of his accrued leave at the time of his separation, he has failed to show through the evidence submitted with his application or the evidence of record that he was unjustly denied the opportunity to take ordinary or terminal leave at some time prior to his scheduled separation date, or that he attempted to change the date of his retirement in order to avoid the loss of his leave.  

3.  Although it is not the intent of the Government that Soldiers lose their accrued leave, Soldiers are routinely denied transition leave due to mission essential needs.  There are no guarantees that transition leave will always be approved or that circumstances will change that prevent one from taking transition leave, which is an inherent risk in accumulating large sums of leave for such purposes.

4.  While there are exceptions that allow individuals to accrue more than 60 days of leave and carry the balance over to the next fiscal year, there is no evidence to show that any of those exceptions applied to the applicant.  There has never been a provision that allows members to carry over leave from one fiscal year to the next, expressly for the purpose of selling it at retirement.  Additionally, while the Board will concede that he may have been told he could carry his leave over or that he interpreted the information he was told as such, it was the applicant’s leave and it was his responsibility to manage his leave as well as checking the regulatory requirements for disposing of his leave.  The applicant has provided no evidence to show that he was improperly counseled at the time or misled to believe that an entitlement existed that in fact did not exist and resulted in a loss, through no fault of the applicant, that could have been avoided.

5.  The applicant’s contentions have been noted; however, they are not supported by the evidence submitted with his application.  He has failed to provide evidence to show how much leave he lost or the circumstances surrounding its loss.  All of the evidence submitted is strictly based on his views and provides no corroboration by Army officials at Fort Stewart at the time to substantiate his claim.  The Board is not an investigative agency and while it reviews many cases in which Soldiers make claims of error or injustices, in no case does the Board approve such requests without substantive evidence to support the issues presented. 

6.  Notwithstanding the foregoing conclusions, there are no provisions in the applicable laws and regulations that allow for payment to the applicant for leave lost.

7.  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:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   __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)                                         AR20110021275





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ABCMR Record of Proceedings (cont)                                         AR20110021275



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