IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140012343 


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, reinstatement of 6.5 days of lost leave and subsequent payment of those days.

2.  He states he lost 6.5 days of earned leave while deployed as part of Joint Task Force Katrina in support of the recovery efforts after Hurricanes Katrina and Rita in 2005.

3.  He provides:

* Memorandum, Subject:  Results of Issue on "Return of Katrina Use/Lost Leave - Special Accrual," dated 26 October 2006
* Memorandum, Subject:  Special Leave Accrual (SLA) Approval, Applicant, dated 17 August 2006

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a U.S. Army Reserve second lieutenant and he executed an oath of office on 25 March 1981.  On 27 May 1981, he was ordered to active duty.  He served in a variety of stateside and/or overseas assignments and he attained the rank/grade of lieutenant colonel (LTC)/O-5.  On 31 July 2006, he was retired and credited with completing 25 years, 
2 months, and 4 days of active duty service.

3.  Item 16 (Days Accrued Leave Paid) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) lists 8 days. 

4.  His record is void of any evidence that indicates he was forced to retire prior to his mandatory retirement date.  His record is also void of evidence showing he was denied the opportunity to use his accrued leave in a timely manner.

5.  In a memorandum, Subject:  SLA Approval, dated 17 August 2006, the Adjutant General, Headquarters, United States Army Forces Command, Fort McPherson, GA, approved the applicant's request for 6.5 days of lost leave due to his deployment in support of Joint Task Force Katrina.  The Adjutant referenced  Army Regulation 600-8-10 (Leaves and Passes) and Military Personnel Message (MILPER) Number 06-181 (Additional Guidance for Authorized SLA to Support the Gulf Coast Disaster Relief) and stated that by law, 120 days leave is the maximum number of days that may be carried forward after serving in the affected Gulf Coast area.  The applicant was advised that leave accrual in excess of 60 days:

* Must be used before the end of Fiscal Year (FY) 2008 (30 September 2008)
* The leave is for use only and not for payment.  These days cannot be "cashed in" upon retirement or separation
* If not used the leave will be lost

6.  On 26 October 2006, the Assistant Inspector General (IG) responded to the applicant's issue concerning "Return of Katrina Use/Lose Leave - SLA" submitted to their office on 31 March 2006.  The IG said that after speaking with the representative from the J-1, she informed their office that due to the applicant's retirement from active duty, he was taken out of the finance system.  Therefore, he would need to complete an application and file it with the ABCMR.


7.  On 6 October 2014, an advisory opinion was obtained from Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, who recommended approval of the applicant's request.  He stated the documents for 6.5 days of leave were carefully reviewed by their office and the Defense Finance and Accounting Service (DFAS).  A DFAS leave audit of the applicant's leave history indicated he lost 6.5 days of leave that he earned from mid-July 2005 to 30 September 2005 during his support of Hurricane Katrina operations.  He further stated his calculation indicated that the applicant is due reimbursement of $1,516.12; however, DFAS must verify calculations.

8.   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, but he did not respond.

9.  Army Regulation 600-8-10 states in:

   a.  Paragraph 2-3d that accrued leave that exceeds 60 days at the end of the FY is lost except as authorized in chapter 3.
   
   b.  Paragraph 3-3 that SLA authorizes Soldiers to carry forward up to 90 days of leave at the end of an FY (60 days normal leave carry over plus 30 days SLA). Soldiers may continue to qualify for the 120-day requirement when, in pertinent part, the Soldier remains entitled to receive hostile fire and imminent danger pay. Leave accrual in excess of 60 days is credited only for use, not for payment.
   
10.  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 fiscal year in which the continuous period of service terminated.

11.  Department of Defense (DOD) Financial Management Regulation (also known as the DOD Pay Manual) provides, in pertinent part, that beginning on 10 February 1976, a military member may not be paid for more than 60 days of accrued leave during a career.




12.  Army Regulation 600-8-24 (Officer Transfers and Discharges) provides the officer transfers and discharge function for all officers on active duty for more than 30 days.  Paragraph 6-27d states, in pertinent part, unless earlier retired, a Regular Army (RA) lieutenant colonel (not recommended for promotion) will retire the first day of the month after the month which the officer completes 28 years active commissioned service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was a LTC in the RA and as such, he was authorized to complete 28 years of active commissioned service.
It further shows he lost 6.5 days of leave which he earned from mid-July 2005 to 30 September 2005 during his support of Hurricane Katrina.

2.  While it is unfortunate that he lost 6.5 days of his accrued leave at the time of his separation, he has failed to show through the evidence submitted with his application or the evidence of record that he was unjustly denied the opportunity to either sell and/or take ordinary or transitional leave at some time prior to his scheduled retirement date of 31 July 2006 (10 months after accumulating the lost leave from mid-July 2005 to 30 September 2005).

3.  Notwithstanding the recommendation from the Chief, Compensation and Entitlements Division, there are no provisions in the applicable law that allows for payment to the applicant for leave lost.

4.  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 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)                                         AR20140012343





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ABCMR Record of Proceedings (cont)                                         AR20140012343



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