BOARD DATE:	4 September 2014  

		DOCKET NUMBER:  AR20130021564 


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 reinstatement of 24.5 days of lost leave.

2.  The applicant states:
 
	a.  He was assigned to the Warrior Transition Unit in California from approximately June 2007 until his medical discharge on 1 January 2013.  He underwent 14 surgical procedures during his time in the program which involved spending a significant amount of time on convalescent leave.

	b.  Convalescent leave was provided to him in 90-day increments or more, with two 1-year convalescent periods for back surgery and cancer.  There was no way he could have utilized all of his personal leave.

	c.  There should have been an exception to policy since it is impossible to be on regular leave and convalescent leave simultaneously.  The majority of the time he was assigned to this medical program was spent on convalescent leave recovering from combat-incurred injuries, as well as cancer.

	d.  His unit failed to utilize or was unaware of special leave accrual (SLA) which would have allowed carrying extra leave beyond the 75-day limit, up to 120 days.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Office of the inspector General (IG) letter, dated 16 November 2013
 
CONSIDERATION OF EVIDENCE:

1.  The applicant was ordered to active duty as a member of the Army National Guard in support of Operation Enduring Freedom on 30 November 2005.  He served as a construction engineer in Afghanistan from 26 April 2006 to 15 February 2007.

2.  On 1 January 2013, he retired by reason of temporary disability in the rank of sergeant first class and was placed on the Temporary Disability Retired List the following day.  His DD Form 214 shows he was paid for 6 days of accrued leave.

3.  He provided a letter from the California Army National Guard IG, dated 16 November 2013, in response to his request for assistance regarding his lost leave which states:

	a.  His leave was lost because he did not have approved SLA which would have allowed him to carry extra leave beyond the 75-day limit, up to 120 days.

	b.  SLA should have been requested by his unit before he went into the use-or-lose leave category.

	c.  Because he was on Title 10 orders and he is now retired, the California Army National Guard has no authority over this issue.

	d.  His best course of action is to apply to this Board.

4.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army, dated 15 December 2013.  The advisory official recommends disapproval of the applicant's request.  The opinion states:

	a.  SLA is based on statutory law outlined in Title 10, U.S. Code, section 701f.  SLA is limited 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 Soldiers who are not authorized annual leave as a consequence of duty assignments in support of a contingency operation.  There is no authority to grant SLA to Soldiers who lose leave due to injury or hospitalization.

	b.  Army Regulation 600-8-10 (Leave and Passes), paragraph 202b(2), cautions Soldiers who maintain a maximum balance of 60 days of leave (75 days until 30 September 2015) year to year that they risk loss of leave if the situation prevents them from taking leave before the end of the fiscal year (FY).

	c.  The applicant indicated he was never counseled or advised by his chain of command that he was in danger of losing leave days.  However, his monthly leave and earnings statement (LES) clearly shows his current leave balance and the number of use/lose leave days that must be used before the end of the current FY or separation.

	d.  While it is unfortunate that the applicant lost leave at separation, no injustice occurred.

5.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded and stated:

	a.  He is fully aware his request for the re-credit of 24 leave days probably does not fall under the SLA, but maybe there is another program or exception to policy that would be applicable to assist service members who have lost leave days due to no fault of their own.

	b.  He was not in a position to take normal (regular) leave since he was on convalescent leave the majority of the time he was assigned to the Wounded Warrior Program.  During this time frame he was fighting for his life dealing with cancer.  There was absolutely nothing he could have done at the time due to his medical conditions.  The least thing that should have been offered would have been for him to sell back his leave.  He was not even afforded that opportunity.  His leave days were "stolen" from him.  Additionally, the advisory opinion stated that his leave balances were available to him via his monthly LES, but he was not able to check due to his illness and hospitalizations.  His wife handled all his financial matters for him by ensuring the direct deposit arrived and paying the bills, so he never retrieved or saw an LES.

	c.  All he wants is restoration of the days that were taken from him.  He fails to understand why the government would need to basically "steal" from an individual who has served his country and put his life on the line.  It is not a question of just losing the days, it actually equates to losing almost $3,000.00 from his family income.

	d.  He served his country as well as the State of California with honor and dignity and having earned-leave days taken without any type of compensation is felonious.  He was and still is a wounded Soldier who is battling cancer and just wants to be treated fairly and with respect.  Soldiers endure enough hardship and sacrifices during their careers, they should not have to fight for what is rightfully theirs as a benefit of service.

6.  Army Regulation 600-8-10 provides:

	a.  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.

	b.  The intent of SLA is to provide relief to Soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility.

	c.  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.

	d.  SLA is authorized to Soldiers who served in an area in which he or she was entitled to hostile fire or imminent danger pay for at least 120 continuous days.  No additional criteria are required under this paragraph for approval.

	e.  Soldiers who meet all the following conditions may also qualify for SLA:

* deployed for a lengthy period, normally 60 or more days
* deployed to meet a contingency operation of the United States
* deployed to enforce national policy or an international agreement based on a national emergency or in the need to defend national security
* prevented from using leave through the end of the FY because of deployment

	f.  Exceptions for SLA are not permitted.

	g.  SLA authorizes Soldiers to carry forward up to 90 days of leave at the end of an FY (60 days of normal leave carry over plus 30 days of SLA).

	h.  Commanders in the grade of lieutenant colonel or higher are the approval authority for Soldiers who serve at least 120 continuous days in an area in which the Soldier is entitled to hostile fire and imminent danger pay.  Commanders will not approve SLA until after the FY, when it becomes known how much leave the Soldier will lose.

	i.  Soldiers may continue to qualify for the 120-day requirement when hospitalized outside the designated area due to injuries resulting from hostile action.  Qualification continues when the Soldier remains entitled to receive hostile fire and imminent danger pay.

	j.  The Commanding General, U.S. Army Human Resources Command, is the approval authority for requests for SLA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, exceptions for SLA are not permitted.

2.  By law, there is no authority to grant SLA to Soldiers who lose leave due to injury or hospitalization.  Also unfortunately, by law it is not possible to carry-over more than 60 days of leave a year.  Regrettably, there is no basis for granting the 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 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)                                         AR20130021564



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ABCMR Record of Proceedings (cont)                                         AR20130021564



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