IN THE CASE OF:	  

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130011025 


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 restoration (or alternate compensation) of 38 days of lost leave. 

2.  The applicant states he was released from active duty (REFRAD) in March 2010, and understood he was entitled to Special Leave Accrual (SLA).  

   a.  At the end of fiscal year (FY) 10, his leave was erroneously carried into FY11 and again to FY12.  He believed it was an authorized transaction and did not find out until December 2012 that it was not authorized.

   b.  In FY13, he submitted a request to carry over his leave.  The request was disapproved by the Defense Finance and Accounting Service (DFAS).  An inquiry determined his leave balance in excess of 75 days should not have been carried over the previous two years.

   c.  He believes that if the correct SLA rules had been applied in FY11, he would have understood the rules and ensured he used the leave prior to losing it.  He was relying on information from the brigade's military technician and received no indication the leave would not carry over until the DFAS audit.

   d.  As the senior Active Guard Reserve officer in a unit whose dwell time is less than 3 years, he supported a 200 percent increase in force structure of rear detachment units in FY10 and FY11 while other brigade elements were mobilized.  Throughout FY12, he was responsible for his unit's mobilization preparation and he anticipated using a significant amount of leave during FY13.  
   e.  He subsequently requested assistance from the Inspector General (IG); however, he received no further resolution with this issue.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter
* Orders 070-330
* 3 pages of electronic mail (email)
* a spreadsheet

CONSIDERATION OF EVIDENCE:

1.  The applicant, while serving in the Army National Guard in the rank of lieutenant colonel, was ordered on 13 March 2009 to a period of active duty not to exceed 400 days.

2.  On 13 March 2010, he was released from active duty to continue on active duty in another status.  The DD Form 214 he was issued shows he served in Iraq for the period 8 April 2009 through 2 March 2010.

3.  The applicant provides:

   a.  A 3-page email from the Army National Guard Financial Services Senior Enlisted Advisor, dated 20 December 2012, who informs the applicant that he was not entitled to SLA and that a total of 38 days of leave were erroneously restored to his account.    

   b.  A spreadsheet in which he indicates he would have used leave if the erroneously restored leave had not been restored in April 2011.
   
   c.  A letter from the Office of the IG, California National Guard, dated 7 May 2013, providing the final IG response to his request for assistance regarding the restoration of his leave denial from DFAS.  It was determined the applicant had no protected leave left.

4.  References:

	a.  Title 10, U.S. Code, section 701(f), states 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 to those Soldiers who are not authorized annual leave as a consequence of duty assignments in support of contingency operations.  Leave in excess of 60 days accumulated under this provision is lost if not used by the Soldier before the end of the third fiscal year after the fiscal year in which the continuous period of service terminated.

   b.  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.
	
   c.  Army Regulation 600-8-10 (Leaves and Passes), Chapter 2 (Policy for Leave) provides:

		(1)  in paragraph 2-2 (Annual leave program), the leave and pass program is designed to allow Soldiers to use their authorized leave to the maximum extent possible.  This paragraph also provides a caution to Soldiers who do not take leave that they may lose leave at the end of the FY.  It further warns that Soldiers who maintain a 60-day (later, 75-day) leave balance, and wait until late in the    FY to take leave, will be informed that they risk loss of leave over 60 days if the operational situation requires their presence.

		(2)  in paragraph 2-3 (Leave accrual), Soldiers on active duty earn 30 days of leave a year with pay and allowances at the rate of 2.5 days a month.
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.  

		(3)  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive restoration (or alternate compensation) of 38 days of lost leave has been carefully considered.  While the applicant's situation is understandable, it is not unique.  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.  The applicant states he understood he was entitled to SLA upon his REFRAD in March 2010.  Although the applicant claims he was not properly advised of the procedures with regard to SLA, it was his responsibility to manage his leave to avoid losing any days over the maximum balance.

3.  There is no evidence showing the applicant was unfairly prevented from using leave.  Army Regulation 600-8-10, paragraph 2-2, cautions Soldiers who maintain a maximum leave balance that they risk loss of leave if the operational situation prevents them from taking leave before the end of the FY.  

4.  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)                                         AR20130011025





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ABCMR Record of Proceedings (cont)                                         AR20130011025



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