BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20120021108 


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, reconsideration of his request for restoration of 17.5 days of leave lost at the end of fiscal year (FY) 2010.

2.  The applicant states he:

* lost 17.5 days of leave due to "Use/Lose" in FY 2010
* was assigned to the Warrior Transition Unit (WTU) on 19 May 2010
* 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
* requested permission to submit an exception to policy prior to his medical retirement on 27 May 2011, but his command denied it
* is requesting an exception to policy as a Reservist who served on active duty and, therefore, he should be entitled to sell the leave back 

3.  The applicant provides:

* DA Form 31 (Request for Leave)
* 3 pages from Army Regulation 600-8-10 (Leaves and Passes)
* orders
* three Leave and Earnings Statements (LES) 
* 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.  Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110016213, on 1 March 2012.

2.  In support of his request for reconsideration, the applicant provides the following evidence and new argument, which is considered new evidence and merit consideration:

	a.  a DA Form 31, dated 27 May 2010, which shows he requested and was granted leave from 1 July 2010 and 5 July 2010. 

   b.  an LES, dated 15 September 2010, that shows his leave balance brought forward was 98 days and his current balance was 99.9 days;

	c.  3 pages from Army Regulation 600-8-10, dated 15 February 2006, wherein he highlighted the following paragraphs:

   (1)  2-4d, "payment of accrued leave is made per U.S. Code, Title 37, Section 501b for leave earned by a Soldier of a Reserve component, retired Reserve, or retired member of the Regular Army while serving on active duty in support of a contingency operation";
   
   (2)  2-4e "illness incurred while serving on active duty in support of a contingency operation"; 
   
   (3)  Soldiers assigned to a designated deployable ship, designated mobile unit, or other similar prescribed duty may be authorized special leave accrual if operational requirement prevented use of leave if:
   
   	(A)  deployed for a lengthy period, normally 60 days of more;
   
   	(B)  deployed to meet a contingency operation of the United States; 
   
   	(C)  deployed to enforce national policy or an international agreement based on a national emergency or in the need to defend national security; and 
   
   	(D)  prevented from using leave through the end of the FY due to deployment.
   
	d.  as a Reservist on active duty he is authorized to cash-in leave during the periods he had active duty orders.

3.  After serving 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.  

4.  The applicant's previous record of proceedings (ROP) contains:

   a.  Orders A-03-009338, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 25 March 2010, which show he was retained on active duty and assigned to the Warrior Transition Unit (WTU) for medical processing in Fort Knox, KY.  

   b.  Orders A-05-014196, issued by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, dated 11 May 2010, which show he was retained on active duty and assigned to the WTU for medical processing in Fort Eustis, VA.    

   c.  an LES, dated 1 October 2010, which shows his leave balance brought forward was 98 days and his current balance was 99.9 days;

	d.  an LES, dated 15 October 2010, which shows his leave balance brought forward was 80.5 days and his current balance was 82 days; and

	e.  4 pages of his medical retention processing, which show a snapshot of his medical history from 8 January 2010 to 12 May 2011;

   f.  16 pages of his appointment history, which show his medical appointments from 1 October 2009 through 1 July 2011; 

   g.  his DD Form 214 which shows 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.  This DD Form 214 shows in:
   
   (1)  item 16 ( Days Accrued Leave Paid) 52.5; and 
   
   (2)  item 18 (Remarks) he served in Afghanistan from 19 March 2006
through 1 May 2007.

   h.  an advisory opinion, dated 27 September 2011, which was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C. which stated:
   
		(1)  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.

		(2)  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, 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.

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

5.  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.

6.  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, and later it was extended into 2015.


7.  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.

8.  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 cashed out 52.5 days leave before his retirement in 2011, which limited the number of days that could be cashed out at the time of separation.  Additionally, he carried a leave balance of 82 days, which contributed to his number of lost days.

2.  He stated he was unable to take leave because he was assigned to the WTU, However, evidence shows he redeployed from Afghanistan in May 2007 and was not assigned to the WTU until 2010.  Therefore, he has not shown that he was prohibited from taking leave, nor that he requested and was denied the opportunity to take leave prior to being assigned to the WTU.

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 60/75 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 the WTU 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 to amend the decision of the ABCMR set forth in Docket Number AR20110016213, dated 1 March 2012.



      ______ _   _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)                                         AR20120021108





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ABCMR Record of Proceedings (cont)                                         AR20120021108



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