IN THE CASE OF:	

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140010277 


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 compensation for 25.5 days of unused ordinary leave and payment of 15 months of unpaid family separation allowance (FSA). 

2.  The applicant states:

* his former commanders barred him from using his accrued leave days
* his commanders were aware of his leave days but failed to extend him long enough to use them
* he was accused and court-martialed in 2012 by his former commander
* due to inadequate legal representation, inadequate time to prepare for his defense, the absence of exculpatory evidence, tainted evidence, and concealment of evidence by a member of his former chain of command, he was found guilty on three of five charges
* he was being treated for multiple illnesses and he was on medications and in constant pain
* his medical and psychological condition at the time was not at its best and as a result those factors weighed heavily against him
* he did not receive a fair trial and not afforded the opportunity for a fair appeal; he was forced out before he could collect his court transcripts and start an appeal
* he was convicted on 11 July 2012; due to his medical and financial condition he was unable to secure legal services to begin his appeal earlier
* his desire was to appeal his case through the military judicial system but due to timing and financial constraints he had to seek an alternate course of action
* it is a huge task to collect evidence and statements without the proper resources and information and he is doing it alone
* he is about 90 percent complete as far as the collection of evidence and completing the narrative surrounding his case
* he received the court transcripts sometime in September or October 2012
* after he retired on 21 August 2012 he no longer had access to military legal help
* he is very close to the 2- year deadline and it is a huge struggle since he is working it by himself
* he is unemployed and being treated for severe depression and these factors are huge obstacles in his efforts
* he would like to appear before the Board if it is an option to tell his story and present evidence 

3.  The applicant provides:

* a self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from the Defense Finance and Accounting Service (DFAS)
* two letters of support
* DA Form 362 (Statement of Charges/Cash Collection Voucher)
* DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earning Statement) 
* orders
* five pages of emails
* Memorandum for Record (MFR), subject:  Air Movement Request, dated          13 June 2010
* MFR, subject:  [Applicant], dated 4 November 2010
* MFR, subject:  Dental Care and Treatment for [Applicant], dated 18 July 2011
* MFR, subject:  Affidavit to Remain on Active Duty Beyond Retention Control Point (RCP), dated 27 July 2011
* MFR, subject:  Request for Medical Extension for [Applicant], dated        27 July 2011
* Memorandum, subject:  Request for Medical Extension Beyond RCP for [Applicant], dated 9 December 2011
* Memorandum, subject:  Retention Beyond RCP for [Applicant], dated                 15 December 2011
* Memorandum, subject:  Retention Beyond Expiration of Term of Service Date, dated 22 June 2012
* MFR, subject:  [Applicant], dated 10 March 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 September 1985.  After completing initial entry training, he was awarded military occupational specialty 15U (Helicopter Repairer).  He continued his service through reenlistments.  He was promoted to sergeant first class/E-7 effective 1 January 2005.

2.  Seventh U.S. Army Joint Multinational Training Command, Germany, Special Court-Martial Order 17 dated 6 December 2012, shows that on 10 July 2012 he was found guilty of Violation of Article 121:

     (1)  Specification 1:  from on or about 5 August 2011 until on or about           15 November 2011, wrongfully appropriate Basic Allowance for Housing, military property a value of more than $500.00 property of the U.S. Government.  Plea:  Guilty.

     (2)  Specification 2:  from on or about 30 April 2011 until on or about              15 November 2011, wrongfully appropriate Hostile Fire/Imminent Danger Pay, military property a value of more than $500.00 property of the U.S. Government.  Plea:  Guilty.

     (3)  Specification 3:  from on or about 30 April 2011 until on or about             15 November 2011, wrongfully appropriate Hardship Duty Pay, military property a value of more than $500.00 property of the U.S. Government.  Plea:  Guilty.

    (4)  Specification 4:  from on or about 30 April 2011 until on or about              15 November 2011, wrongfully appropriate Family Separation Pay, military property a value of more than $500.00 property of the U.S. Government.  Plea:  Not Guilty.  Finding:   Guilty.
 
3.  His sentence consisted of reduction to the rank/grade of staff sergeant/pay grade E-6, a forfeiture of $2,300.00 pay for 1 month, and confinement for             1 month.  On 10 July 2012, the convening authority approved the sentence.

4.  On 31 August 2012, he was retired in the grade of E-6.  His separation orders show in the additional instructions that he was not authorized transitional leave. 

5.  He provides a DFAS Form 702, covering the period 1 through 31 August 2012 showing he had a current leave balance of 25.5 days.

6.  He provides witness statements which, in effect:

* corroborate his claim that his chain of command failed to allow him to use his accrued leave
* state that other Soldiers also experienced issues with overpayments of allowances
* state that he attempted to correct the overpayment of allowances and intended to reimburse the Government

7.  During the processing of this case, on 4 August 2014, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.

	a.  It was unfortunate that the applicant was unable to utilize his remaining  annual leave before separation/retirement.  However, he acknowledged that he had previously sold back to the Government 60 days of annual leave, which is the maximum number of leave days that can be sold back/reimbursed in a career.  Consequently, there is no authority to reimburse him for the unused 25.5 days of leave.  Army Regulation 600-8-10 (Leave and Passes) cautions Soldiers who maintain a maximum leave balance (sold maximum number of leave days) that they risk loss of leave if the situation prevents them from taking leave before the end of the fiscal year/retirement/separation.  Transition permissive temporary duty (PTDY) is an administrative pass/time off that is authorized for Soldiers being released from active duty.  It is an authorization, not an entitlement.  Consequently, there is no authority to reimburse for unused PTDY.  Additionally, his separation order 220-0001, dated 7 August 2012, indicates in the additional instructions, paragraph g, that he was authorized 00-days of transition leave and 00-days of PTDY.  

	b.  The advisory official further stated based on the court-martial findings, he was found guilty of misappropriation of FSA.  Unless the conviction was overturned, there was no basis for paying him 15 months of FSA.

	c.  The advisory official recommended denial of his request for reimbursement of 25.5 days of leave, 30 days PTDY, and 15 months FSA.

8.  On 8 August 2014, 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.  

9.  On 13 and 18 August 2014, he responded to the advisory opinion.  He stated:

     a.  He understood that he was never entitled to PTDY and that is why he specifically requested compensation for only his unpaid leave and FSA.  He was not found guilty of stealing or misappropriating FSA.  He was unable to correct that particular issue because his former unit did not allow him time to appeal his conviction, take his leave, and receive his court transcripts.  He only mentioned PTDY to highlight the unfair treatment his former unit subjected him to.  He never received a fair trial, evidence was concealed, he was denied access to legal assistance after his conviction, and he was denied the opportunity to appeal his conviction.  He was targeted and singled out for special treatment because he had previously filed a complaint.  He was forced out before he received transcripts of his trial and was never given a fair opportunity throughout the whole situation.

     b.  He was a whistleblower and he was retaliated against because of his complaints.  His former unit knew he had unused leave months before his court-martial but they refused to allow him to take leave before and after his court-martial.  He has witness statements and sworn statements from people who heard him request leave and they also heard promises made by his former chain of command that he would be allowed to take his unused leave.  He was extended one year out so it would have been easy for them to allow him to take his leave days and for him to resolve the FSA issue.  He was not assisted in any way by his former unit and thus prevented from taking leave.  Everything he has stated is true and may be verified by statements, witnesses, his former attorney, and other supporting information and documents.  He was specifically denied leave in April 2012.  He submitted a leave form and it was denied because he was considered a flight risk.

     c.  He was entitled to FSA, but because of negligence by his former chain of command he was not able to correct the errors by his former finance officer and former units.  He is not seeking compensation for PTDY.  He understands that PTDY is a privilege granted by commanders.  After 27 years of service he was given 23 days to out process, move, take 25 days of leave and the privilege of 30 days PTDY.  The numbers do not add up.  He did everything that was required of him so that he could use his leave and resolve his unpaid FSA.  He served his country faithfully for 27 years and he would like to be compensated for what he earned and was entitled to.

10.  Army Regulation 600-8-10, 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 fiscal year (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.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  Additionally, applicants may be represented by counsel at their own expense. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be compensated for 25.5 days of unused ordinary leave and compensation of 15 months of unpaid FSA has been carefully considered. 

2.   While his leave situation is understandable, it is not unique.  Although his situation is unfortunate, there are no provisions of law or regulation that allow for granting the applicant relief in this case. 

3.  In reference to his request for compensation for FSA, he was found guilty of misappropriating FSA by a court-martial.  Unless the conviction is overturned, there is no basis for compensating him for 15 months of FSA. 

4.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair 
and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

5.  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)                                         AR20140010277



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ABCMR Record of Proceedings (cont)                                         AR20140010277



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