IN THE CASE OF:

	BOARD DATE:  6 September 2012

	DOCKET NUMBER:  AR20120004044 


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 for payment for 72.5 days of accrued leave.

2.  The applicant states, in effect, that he had 72.5 days of annual leave saved as a result of his mission in Southwest Asia where he served as the Aviation Project Officer and contracting officer's representative for an aviation contract valued at over $756 million and involving 1,200 personnel.  His section should have had 5 personnel but there were only 2.  His mandatory retirement age was 62 and he was told finance would pay him for the 72.5 days of leave based on an exception to policy.  He later was informed finance would not pay him for the leave.

3.  The applicant provides copies of:

* his retirement orders
* memorandum, subject:  Crossing Multiple Months Outside the Continental United States
* trip timeline
* his leave and earnings statements (LES) for 1-31 May 2011
* temporary duty (TDY) orders to proceed on 13 October 2010 for 30 days
* TDY orders to proceed on 7 January 2011 for 68 days
* letter of lateness concerning submission of his retirement request
* his 23 February 1989 DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* his 31 May 2011 DD Form 214 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army (RA) aviation maintenance chief warrant officer five (CW5). 

2.  The applicant provided orders showing he was:

     a.  TDY in October 2010 for 30 days to Camp Arifjan, Kuwait to conduct inspections on aircraft maintenance sites in Kuwait and Iraq and to train and integrate a government employee.

     b.  On a temporary change of station in support of Operation New Dawn Kuwait with a proceed date of 15 December 2010 for a period not to exceed 365 days.

     c.  TDY from 7 January to 15 March 2011 (68 days) to conduct contract site inspections and surveys in Kuwait, Iraq, and Afghanistan.

3.  His May 2011 LES shows he had previously been paid 60 days of annual leave.  He retired on 31 May 2011.

4.  In connection with the processing of this case, on 27 March 2012, an advisory opinion was obtained from the Chief of Compensation and Entitlements Division, Office of the Deputy Chief of Staff G-1, Pentagon, Washington, D.C.  The Chief recommended disapproval of the applicant's request and stated that:

     a.  The applicant's May 2011 LES shows he had (previously) cashed out the maximum number of annual leave days (60) upon retirement from the Regular Army on 31 May 2011.  

     b.  Title 37, U.S. Code (USC) section 501 (Payments for unused leave, paragraph (f) indicates that "the number of days upon which payment under subsection (b) or (g) is based may not exceed sixty, unless the number of days for which payment has been previously made under such subsections after February 9, 1976.  For the purposes of this subsection, the number of days upon which payment may be based shall be determined without regard to any break in service or change in status in the uniformed services."  However, the limitation in subsection (f) shall not apply with respect to leave accrued by:

     c.  A member of a Reserve component while serving on active duty in support of a contingency operation.

     d.  A member of the Armed Forces in the Retired Reserve while serving on active duty in support of a contingency operation.

     e.  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 operations.

     f.  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.

     g.  The applicant does not meet any of the criteria in a, b, c, or d above for cashing out additional annual leave upon RA retirement, regardless of the circumstances.

5.  The applicant was furnished a copy of this advisory opinion on 2 March 2012. He did not concur and submitted a rebuttal statement on 5 April 2012.  He stated that:

     a.  He was on active duty in support of Operation New Dawn during the drawdown from Iraq and deployed to Afghanistan with the Contracting Field Team equipment and personnel.

     b.  His May 2011 LES does not indicate he cashed out the maximum number of days of leave upon retirement from the RA on 31 May 2011.  He only received $97.73 on the second LES, dated 31 May 2011.  He included copies of two LESs he received for May 2011 to show he did not get paid for the 72.5 days of leave, as an exception to policy.

     c.  As a Soldier he was trained to follow his last order.  He was asked to stay by his leaders and complete the mission, so he did just that.  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.  He did not receive the payment when he retired at Fort Bragg, NC.  Mr. H____ informed him that finance was not going to pay him for the leave.  He included copies of his January through June 2011 LES.  He is only asking for what he is rightly due.

6.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies for the leave and pass function of the Army Military Personnel System.  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.  This entitlement excludes periods of confinement for more than 1 day while awaiting court-martial provided Soldier is convicted.  Additionally, paragraph 2-4 of this regulation also states, in pertinent part, that payment of accrued leave is made per Department of Defense Financial Management Regulation 7000.14–R.  By law, payment of accrued leave is limited to 60 days one time during a military career, unless earned in a missing status or in a special leave status (as discussed above in the advisory opinion).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an exception to policy so he can be paid for the 72.5 days of annual leave he accumulated was carefully considered.  Although the applicant's situation is unfortunate, there are no provisions of law or regulation that allow for granting the applicant relief in this case.

2.  Title 37, USC, Section 501 and the governing regulation state that payment of unused leave may not exceed 60 days.  The applicant's situation does not fit into any of the several exceptions.

3.  Even though his DD Form 214 does not show he was paid for 60 days leave during the period covered by the DD Form 214, his LES shows he had previously been paid for 60 days of leave.  

4.  There is no available evidence showing the applicant was told he would be paid for the 72.5 days of leave he had accrued or that he was denied a request to take any of that leave.

5.  There is insufficient evidence to warrant granting the relief requested.

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)                                         AR20080000458



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ABCMR Record of Proceedings (cont)                                         AR20120004044



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