IN THE CASE OF:  	  

		BOARD DATE:  24 March 2015	  

		DOCKET NUMBER:  AR20140020348 


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 an exception to policy to recoup 8 days of leave he lost during Fiscal Year 2013 (FY13).

2.  The applicant states he was deployed on a special mission to Mexico for 120 continuous days in a temporary duty (TDY) status, in a contingency operation of the U.S. Northern Command (USNORTHCOM) with the Mexican military.  He applied for the special leave accrual (SLA) but the U.S. Army Human Resources Command (HRC) denied his request because Mexico is not a hostile fire pay/imminent danger pay area.  He was the only officer with the required skills to perform this task and he was notified only 2 weeks before it started.  NORTHCOM gave him 6 days to come back to Fort Sam Houston for packing and preparation.  He had taken 10 days prior to the notification and he was scheduled to take 30 days in the summer.  He was precluded from taking leave due to the short notice of the mission.  He was not allowed to take leave in Mexico because he was considered mission essential by his command.  

3.  The applicant provides:

* Request for SLA credit
* Email from HRC
* Denial memorandum from HRC
* DD Form 1610 (Request and Authorization for TDY Travel of Department of Defense (DOD) Personnel)
* DD Form 1351-2 (Travel Voucher or Sub-voucher)
* Leave and Earnings Statements 
* Extract of Army Regulation 600-8-10 (Leaves and Passes)

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 11 December 2003. 

2.  He completed the Military Intelligence Captains Career Course and he was promoted to the rank of major on 1 November 2013.  He was assigned to Fort Sam Houston, TX. 

3.  He provides multiple DD Forms 1610 and/or DD Forms 1351-2 showing he departed on routine TDY from Fort Sam Houston to Mexico and returned as follows: 

* 27 January to 6 February 2013
* 21 April to 1 May 2013
* 8 May to 10 June 2013
* 16 June to 7 December 2013

4.  On 4 November 2013, his chain of command submitted a request for credit of leave days to HRC.  His immediate commander stated that the applicant had several TDYs in Mexico from January 2013 through 7 December 2013 and was unable to take leave due to his critical mission. 

5.  On 5 November 2014, HRC responded with a denial memorandum.  An HRC official stated that, by law, the applicant was not entitled to the SLA.  Duty in Mexico does not meet the criteria for SLA because Mexico is not a hostile fire pay or imminent danger pay area.  He added that TDY is not a basis for SLA and cited the references as Title 10, U.S. Code, section 701; DOD Instruction 1327.06 (Leave and Liberty Procedures), and Army Regulation 600-8-10. 

6.  An advisory opinion was received from HRC on 29 December 2014 in the processing of this case.  An HRC official stated: 

	a.  The documents provided by the applicant were reviewed by this office and the Defense Finance and Accounting Service (DFAS).  Based on that review this office recommends that the Board deny his request to re-credit eight (8) days annual leave lost at the end of FY13.

	b.  He states that due to his 16 June 2013 to 7 December 2013 USNORTHCOM TDY to Mexico, he was unable to utilize sufficient annual leave to prevent loss of 8 days leave at the end of FY13.  It is unfortunate that he was unable to utilize sufficient annual leave before the end of FY13 to prevent loss of leave.  However, per Title 10, U.S. Code, section 701 (Leave Entitlement and Accumulation), paragraph (f), his situation does not meet the criteria to qualify for SLA.  

	c.  Additionally, Army Regulation 600-8-10, paragraph 2-2b(2) cautions Soldiers who maintain a maximum leave balance year to year that they risk loss of leave if operational situations prevents them from taking leave before the end of the fiscal year, which appears to be the reason that he lost 8 days of annual leave at the end of FY13.  Therefore, this office recommends that the Board deny his request to re-credit 8 days of leave lost at the end of FY13.

7.  The applicant was provided with a copy of this advisory opinion.  He responded with a rebuttal on 23 January 2015.  He stated: 

	a.  He tried to follow the proper Army channels and resources available to him in order to further explain his situation regarding his lost leave while he was deployed in Mexico for more than 120 continuous days in a contingency operation of NORTHCOM with the Mexican Military.  He applied for an SLA exception to policy on 2014 in accordance with Army Regulation 600-8-10.  The request was disapproved by HRC and DFAS based on duty location and mission type (TDY) and the leave days were lost. 

	b.  He wants the Board to know that he went TDY to Mexico and other continental United States (CONUS) locations prior to his May through December 2013 long TDY mission.  He went TDY to the Joint Readiness Training Center, LA, in September 2012; Fort Huachuca, AZ, and Fort Knox, KY, in November 2012; the National Training Center, CA, and Fort Belvoir, VA, in December 2012, in support of Army North (ARNORTH) Security Cooperation Program (escort foreign officers duty).  He did not have the opportunity to take leave prior to his deployment to Mexico due to high training tempo.  At the time, he was the only officer with the required skills to perform this USNORTHCOM task in entire command.  He was notified about this long-term TDY two weeks before the mission started while he was TDY in Mexico conducting training on behalf of ARNORTH.  His chain of command gave him 6 days to come back to Fort Sam Houston (his residence) for packing, informing his family and preparation purposes.  He had taken 10 days leave (in December 2012) prior to notification of this deployment and he was scheduled to take 30 days in the summer 
(1 to 30 July 2013), which he had to cancel.

	c.  He was precluded from taking leave during this mission due to the short period between the issuance of his TDY orders and ARNORTH high training tempo.  While deployed, he wasn't allowed to take leave in Mexico because he was mission essential for NORTHCOM, the Defense Intelligence Agency, and the Mexican military.  His ARNORTH chain of command tried to rectify this injustice by submitting two memoranda to DFAS requesting credit of his lost leave days.  DFAS stated that the approving authority for this action was HRC which disapproved the SLA request.  He wants to rebut the HRC advisory opinion, dated 29 December 2014, because he did not have the opportunity to take the 8 days of leave due to mission requirements for FY13.

8.  Title 10, U.S. Code, section 701 (Entitlement and Accumulation) states in:

	a.  Sub-section (f)(1)(A), the Secretary concerned, under uniform regulations to be prescribed by the Secretary of Defense, may authorize a member described in subparagraph (B) who, except for this paragraph, would lose at the end of the fiscal year any accumulated leave in excess of the number of days of leave authorized to be accumulated under subsection (b) or (d), to retain an accumulated total of 120 days leave.

	b.  Sub-section (f)(1)(B), this subsection applies to a member who :

		(1)  serves on active duty for a continuous period of at least 120 days in an area in which the member is entitled to special pay under section 310(a) of Title 37, U.S. Code. 

		(2)  is assigned to a deployable ship or mobile unit or to other duty designated for the purpose of this section; or

		(3)  on or after August 29, 2005, performs duty designated by the Secretary of Defense as qualifying duty for purposes of this subsection.

	c.  Sub-section (f)(1)(C), except as provided in paragraph (2), leave in excess of the days of leave authorized to be accumulated under subsection (b) or (d) that are accumulated under this paragraph is lost unless it is used by the member before the end of the third fiscal year (or fourth fiscal year, if accumulated while subsection (d) is in effect) after the fiscal year in which the continuous period of service referred to in subparagraph (B) terminated.

	d.  Sub-section (f)(2), under the uniform regulations referred to in paragraph (1), a member of an armed force who serves on active duty in a duty assignment in support of a contingency operation during a fiscal year and who, except for this paragraph, would lose at the end of that fiscal year any accumulated leave in excess of the number of days of leave authorized to be accumulated under subsection (b) or (d), shall be permitted to retain such leave until the end of the second fiscal year after the fiscal year in which such service on active duty is terminated. 

DISCUSSION AND CONCLUSIONS:

The applicant served in Mexico in a TDY status from May to December 2012.  Unfortunately, TDY is not a basis for SLA and duty in Mexico does not meet the criteria for SLA because Mexico is not a hostile fire pay or imminent danger pay area.  SLA is governed by law and a change to the law is not within the purview of this Board.  He is not entitled to 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 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)                                         AR20140020348



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ABCMR Record of Proceedings (cont)                                         AR20140020348



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