IN THE CASE OF:	  

		BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140013836 


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 9 days of lost leave and subsequent payment for those days and to personally appear before the board.

2.  She states she lost 9 days of leave after a deployment because there was no time to take the leave.  She was given one week’s notice prior to the deployment. The commander assured her the leave days would be placed in a hold status and not lost.  She verified the hold was placed on her leave at the first deployment stop in Kuwait.  She had to return from deployment early due to her mandatory retirement date (MRD) and the unit did not know how to correct her leave situation. 

3.  She provides:

* memorandum, subject:  Special Leave Accrual (SLA), [Applicant], dated 
22 May 2014 with commander's recommendation, dated 28 May 2014
* DA Form 31 (Request and Authority for Leave), undated
* Orders  GO-216-0008, dated 3 August 2012
* memorandum, subject:  Applicant's Erroneous Leave Charge, dated 
7 May 2013
* Personal Statement of Military Compensation
* Unit Commander's Financial Reports for the months ending 30 November, 31 October, and 30 September 2012


CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the Regular Army, the applicant was honorably discharged to accept appointment as a warrant officer one (WO1) on 25 July 2006.  She was appointed to WO1 on 26 July 2006 and entered active duty.  She served in Afghanistan from 15 March 2005 to 14 February 2006.

2.  Orders GO-216-0008, dated 3 August 2012, show the applicant was scheduled to deploy in support of Operation Enduring Freedom on 4 August 2012.

3.  On 19 October 2012, the applicant signed a memorandum acknowledging receipt of a notification informing her of her MRD due to non-selection for promotion.  She initialed the paragraph indicating that she voluntarily requested her retirement to be effective no later than her MRD of 28 February 2013. 

4.  A DA Form 31, undated, shows the applicant requested and was approved for permissive temporary duty (PTDY) and retirement transition leave from 5 November 2012 to 28 February 2013.  She requested 115 days of leave and PTDY.  This form further shows PTDY was from 5 to 24 November 2012 and ordinary leave was from 25 November 2012 to 28 February 2013.   

5.  On 9 November 2012, Orders 314-0905 were issued showing the applicant was scheduled to retire from active duty effective 28 February 2013.  

6.  The Unit Commander's Financial Reports for the months ending September, October, and November 2012 show the applicant had a leave balance of 86.5, 89, and  82.5 days, respectively.  The column indicating pay option listed "Save." 

7.  On 28 February 2013, she was honorably retired in the rank of chief warrant officer two (CW2) from the Regular Army.  She was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that lists in item 16 (Days Accrued Leave Paid) 0 days. 

8.  After her retirement on 7 May 2013, the company commander stated the applicant was erroneously charged 7 days of leave in September 2012.  He stated that she was deployed from 4 August 2012 to 21 October 2012 and was not able to take leave prior to her deployment.  Upon her return, she out-processed and took 115 days of leave/PTDY.

9.  Her record is void of any evidence showing she was denied the opportunity to use her accrued leave in a timely manner.

10.  In a memorandum, subject:  SLA [Special Leave Accrual], Applicant, dated 22 May 2014, the battalion commander recommended the U.S. Army Human Resources Command (HRC) disapprove the applicant's request for SLA.  He quoted Army Regulation 600-8-10 (Leaves and Passes) and stated leave accrual in excess of 60 days is credited only for use and not for payment.  He stated that since the applicant is no longer in the military, she cannot use the leave and the regulation does not support payment.  He further stated:

* The command was notified of the deployment to Kuwait on 12 July 2012 and the applicant was notified on 31 July 2012.
* The applicant deployed on 4 August 2012 and returned from deployment on 1 November 2012.
* The commander's annual leave program aggressively supports the use of 30 days of leave each year.
* She took leave from 13 to 17 January 2012 and 11 to 22 April 2012 (18 days) and was planning on taking 10 days beginning on 25 August 2012.
* She planned on taking additional leave to expend her use/lose leave, but was precluded due to mission requirements (deployment).

11.  On 28 May 2014, the brigade commander recommended disapproval of the commander's request.

12.  On 11 September 2014, an advisory opinion was obtained from Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, who recommended denial of the applicant's request.  

   a.  He stated the applicant indicated she did not have time to take leave before deployment on 4 August 2012.  While she may not have had the opportunity to take leave immediately prior to deployment, she did have 10 months (October 2011 to July 2012) before deployment to reduce her leave balance below the maximum leave carryover balance permitted by Title 10, U.S. Code, section 701.  Had she done so, she would not have lost leave at the end of the fiscal year (FY).  

   b.  The Defense Finance and Accounting Service (DFAS) confirmed the applicant took leave on three occasions during the FY.  Therefore, she could have taken enough leave during the year to prevent loss of leave at the end of the FY.  The regulation cautions Soldiers who maintain a maximum 60 days leave (75 days until 30 September 2015) balance year to year that they risk loss of leave if the operational situation prevents the use of leave.  As a chief warrant officer, she should have known and understood the Army's leave and pass policy.  It is unfortunate that she lost leave; however, no injustice or error occurred.

13.  A copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  

   a.  On 15 October 2014, she reaffirmed her request for an appearance before the board.  She states for years she has taken leave on three occasions: the anniversary of her enlistment, her birthday, and in July/August to spend time with her family.  She explains that during FY 2012, she was required to sign in from leave to go TDY in early December.  She adds the rest of December and January was previously forecasted for the other warrant officers to go on holiday leave.  During the second quarter the battalion's policy changed regarding taking leave in conjunction with TDY.  She maintains that had it not been for a previous approval from the battalion commander to take leave in Germany, she would have lost leave.  
   
   b.  When she returned, there were other required training events and other warrant officers returning from deployment that needed to take leave.  Those officers were given priority by the unit since it was May and June 2012.  It was the company's policy to request leave 30 days in advance and no one could go on leave until his/her Defense Travel System (DTS) information was entered into the system.  By the time her DTS information was entered into the system, she was notified of the deployment.  
   
   c.  She also maintains she could not take leave at the beginning of the FY during October through December because she had shoulder surgery and she was not released from the doctor's care.  She states the 9 days of leave lost was through no fault of her own and she tried to do her due diligence and take the leave but was unable to take it prior to her MRD.
   
14.  Army Regulation 600-8-10 states in:

   a.  Paragraph 2-2, commanders will establish an annual leave program to manage leave designed to provide the maximum opportunity for all Soldiers to take leave to minimize loss and payment of leave not taken.
   
   b.  Paragraph 2-2b(2), caution to Soldiers who do not take leave, that they may lose leave at the end of the FY.  Also, Soldiers who maintain a 60-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.
   
   c.  Paragraph 2-3d that accrued leave that exceeds 60 days at the end of the FY is lost except as authorized in chapter 3.
   
   d.  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 SLA based on 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.

15.  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 FY after the FY in which the continuous period of service terminated.

16.  The Department of Defense (DOD) Financial Management Regulation 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.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 contains guidance on ABCMR hearings and states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR or the Director of the ABCMR may, in their discretion, grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  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 are 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.

2.  The evidence of record shows the applicant was a CW2 in the RA with an MRD of 28 February 2013 due to non-selection for promotion.  During FY 2012 she lost 9 days of leave due to being deployed in Kuwait from 4 August 2012 to
2 November 2012.

3.  The evidence record further shows the applicant took 20 days of PTDY from 
5 to 24 November 2012.  However, she could have opted to take 11 days of PTDY and an additional 9 days of transition leave.  This would have ensured that she was afforded the opportunity to take all her accrued leave.  

4.  While it is unfortunate that she lost 9 days of her accrued leave at the time of her retirement, she has failed to show through the evidence submitted with her application or the evidence of record that she was unjustly denied the opportunity to either sell and/or take ordinary leave prior to taking the 115 days of PTDY/transition leave at some time prior to her scheduled retirement date of
28 February 2013.  

5.  Further, the applicant's statement that "for years she has taken leave on three occasions" indicates that she was not maximizing her opportunity to take leave and typically maintained a high leave balance.  As cited in paragraph 14b of this document, Soldiers who maintain a 60-day leave balance and wait 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.

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 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)                                         AR20140013836



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ABCMR Record of Proceedings (cont)                                         AR20140013836



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