RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 May 2004         
	DOCKET NUMBER:   AR2003087461

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Mr. Ronald J. Weaver		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his separation orders be amended to allow him to use 93 days of accrued leave and/or payment of pay and benefits for 93 days of accrued leave (base pay, basic allowance for subsistence (BAS), basic allowance for quarters (BAQ), and variable housing allowance (VHA)).

2.  The applicant states that he was unfairly denied usage of his leave or payment for his leave.  Due to the sensitive national security requirements of his assignment as Director of Operations, Office of Homeland Security, he was unable to take his normal leave or special accrued leave.  Despite his efforts to hold his transfer in abeyance, he was transferred from Title 10 to control of Headquarters, State Area Command (STARC), Washington Army National Guard (WAARNG) to accept appointment as a general officer on 30 October 2002 after completing 20 years of active Federal service (AFS) and reaching his O-6 mandatory removal date (MRD).  Due to the nature of his last two assignments, he was denied at the time of his transfer the leave to which he was entitled.  

3.  The applicant states that he served as Force Advisor for the Chairman of the Joint Staff from August 1999 to October 2001.  Starting 11 September 2001, he served on the Joint Staff Crisis Action Team (CAT), National Military Command Center (NMCC) until he was detailed to the newly-created Office of Homeland Security in October 2001.  When the National Guard Bureau (NGB) cut his orders on 17 September 2002 for transfer/separation on 30 October 2002, they did not coordinate with the Office of Homeland Security to replace him nor did they provide any notice that he would not receive payment nor be allowed to use the leave to which he was entitled, nor did they coordinate or allow transition time.

4.  The applicant provides NGB Orders 260-1 dated 17 September 2002; a          3 February 2003 memorandum from the Chief of Staff, NGB to the applicant, subject:  Request for Special Leave Accrual; an undated memorandum from the applicant to NGB, subject:  Request for Amendment of Separation Orders to Allow Use of Leave (applicant and his social security number); a 24 January 2003 memorandum from the U. S. Total Army Personnel Command (PERSCOM) to the applicant, subject:  Request for Special Leave Accrual; and an extract from the Congressional Record showing the applicant's promotion to brigadier general was confirmed by the Senate on 19 November 2002.

5.  The applicant also provides a 10 December 2002 letter from the Executive Secretary, Office of Homeland Security to the Defense Finance and Accounting Service, subject:  Leave (applicant and his social security number); a 27 March 2003 memorandum from the Acting Chief, NGB to the Board, subject:  Resolution of Loss of Accrued Leave (applicant); a 21 March 2003 memorandum from the Assistant to the Chairman, Joint Chiefs of Staff for National Guard Matters to the Board, subject:  Loss of Accrued Leave (applicant and his social security number); an undated memorandum from the Chief, Homeland Security to the NGB, subject:  Leave (applicant and his social security number); a           20 January 2003 letter from the Advisor to the President for Homeland Security to the Board; a copy of the applicant's pay records showing his leave balance; and General Officer Announcement Number 03-007 dated 17 October 2002.

CONSIDERATION OF EVIDENCE: 

1.  After having had prior enlisted service, the applicant was appointed a second lieutenant in the ARNG on 14 August 1971.  He entered active duty in an Active Guard Reserve (AGR) status in 1985.  Records at the Defense Finance and Accounting Service (DFAS) show he sold 54 days of leave back to the Government in 1986.  He was promoted to colonel on 2 July 1998.

2.  As of August 1999, the applicant had completed 28 years of commissioned service; however, he had also completed over 18 but less than 20 years of active Federal service.  He was ordered to [continued on] active duty in an AGR status for a period of 3 years, 2 months, and 13 days and attached to the Joint Chiefs of Staff with duty at the Director of the Joint Staff to serve as the Force Advisor to the Joint Chiefs of Staff for National Guard Affairs.  The authority for this active duty was Title 10, U. S. Code, section 12301(d) in accordance with section 12310(a).

3.  The 27 March 2003 memorandum from the Acting Chief, NGB to the Board states the applicant served on the Joint Staff Crisis Action Team in the National Military Command Center from 11 September 2001 until his detail to the Office of Homeland Security on 16 October 2001.  At the end of September 2001, the applicant had an accrued leave balance of approximately 60 days.

4.  National Guard Bureau Orders 260-1 dated 17 September 2002 released the applicant from active duty and returned him to the control of Headquarters, STARC, WAARNG, with a report date of 30 October 2002.  In the "FOR ARMY USE" section, these orders state, "Transition leave begins:  Not applicable."  Records at DFAS show he sold 6 days of leave to the Government at that time.

5.  In an undated memorandum to the NGB, the applicant requested his separation orders be amended to extend his separation from 30 October 2002 until 25 January 2003.  He stated that his request was consistent with the Secretary of Defense's special leave accrual policy for all service members    who were prevented from using leave by operational requirements following      11 September 2001.  He stated that otherwise he would lose his accrued leave, approximately $26,060 in pay and benefits (3 months pay plus VHA and BAS).

6.  The NGB could not extend the applicant's separation date as he had reached his MRD.  The NGB forwarded his request for special leave accrual to PERSCOM.  His request was denied by PERSCOM by memorandum dated      24 January 2003 because he had already separated.  PERSCOM also informed him that he was separated because he had achieved 20 years of AFS and he had passed his MRD.  His MRD was 31 August 2001 (as his original commissioning date was 14 August 1971) but because he had achieved 18 plus years of AFS prior to that date he was authorized to extend his MRD until he reached 20 years of AFS.  That occurred in September 2002 and, with his outprocessing and transition time added, his separation date became 31 October 2002.

7.  In an undated memorandum to the NGB, the Chief, Homeland Security stated the applicant lost leave because he was unable to take normal leave due to the post-11 September 2001 national security situation.  He also stated that, in addition, due to the short notice of separation the applicant was unable to plan for or take leave as allowed under normal conditions.

8.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies for the leave and pass function of the Military Personnel System.  Paragraph 2-2a states that the leave and pass program is designed to allow soldiers to use their authorized leave to the maximum extent possible.  Paragraph 2-2b(2) states that soldiers are cautioned that if they do not take leave they may lose leave at the end of the fiscal year.  Also, soldiers who maintain a 60-day leave balance, and wait until late in the fiscal year to take leave, will be informed that they risk loss of leave over 60 days if the operational situation requires their presence.  Paragraph 2-2c(14) states that it is not the intent of leave policy that large leave balances be accrued expressly for settlement upon soldier's release from active duty.  Paragraph 2-4b states that, by law, payment of accrued leave is limited to 60 days one time during a military career unless earned in a missing status or by soldiers who die because of an injury or illness incurred while serving on active duty in support of a contingency operation.  

9.  Paragraph 3-1 of Army Regulation 600-8-10 states that the intent of special leave accrual is to provide relief to soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility.  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.  Paragraph 3-2a states that Title 10, U. S. Code, section 701f, provides special leave accrual to soldiers who meet the criteria in this section.  Paragraph 3-2 states that special leave accrual 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.  Paragraph 3-2d states that soldiers who meet all the following conditions may also qualify for special leave accrual:  (1) deployed for a lengthy period, normally 60 or more days; (2) deployed to meet a contingency operation of the United States; (3) deployed to enforce national policy or an international agreement based on a national emergency or in the need to defend national security; and (4) prevented from using leave through the end of the fiscal year because of deployment.

10.  Title 37, U. S. Code, section 501 states that a member of the Armed Forces who has accrued leave to his credit at the time of his discharge is entitled to be paid in cash or by a check on the Treasury of the United States for such leave on the basis of the basic pay to which he was entitled on the date of discharge.  However, the number of days of leave for which payment is made may not exceed 60, less the number of days for which payment was previously made under this section after 9 February 1976.

11.  In Fiscal Year 2000, the National Defense Authorization Act changed Title 37, U. S. Code, section 501 to allow any soldier who was serving on a contingency operation to be able to sell any unused leave at the end of the contingency operation without impact to the career sell back of leave.  The following year, Congress changed Title 37, U. S. Code, section 501 again to allow any soldier who was on active duty for a period of less than 365 days to sell leave and not impact on the career sell back limitation.  This action was not limited to contingency operations but for any period of active duty less than      365 days.

12.  Title 10, U. S. Code, section 701f(1) states that, under uniform regulations to be prescribed by the Secretary concerned, and approved by the Secretary of Defense, a member who serves on active duty for a continuous period of at least 120 days in an area in which he is entitled to special pay under section 310(a) of Title 37 may accumulate 90 days leave.  Section 701f(2) states that, 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:  (A) would lose any accumulated leave in excess of 60 days at the end of that fiscal year, shall be permitted to retain such leave (not to exceed 90 days) until the end of the succeeding fiscal year; or (B) would lose any accumulated leave in excess of 60 days at the end of the succeeding fiscal year, shall be permitted to retain such leave (not to exceed 90 days) until the end of the next succeeding fiscal year.  

13.  Title 10, U. S. Code, section 101a(13) defines "contingency operation" to mean a military operation that:  (A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (B) results in the call or order to, or retention on, active duty of members of the uniformed services under sections 688, 12301(a), 12302, 12304, 12305, or 12406 of this title or any other provision of law during a war or during a national emergency declared by the President of Congress.

14.  Title 10, U. S. Code, section 14507 states that, unless continued on the reserve active-status list (RASL) under section 14701 (maximum years of service) or 14702 (maximum age) of this title or retained as provided in section 12646 (retention in an active status) or 12686 (retention on active duty) of this title and who is not on a list of officers recommended for promotion to the next higher grade shall be removed from the RASL on the first day of the month after the month in which the officer completes 30 years of commissioned service.

15.  Title 10, U. S. Code, section 12686(a) states that a member of a Reserve component who is on active duty and is within two years of becoming eligible for retired pay under a purely military retirement system may not be involuntarily released from that duty before he becomes eligible for that pay.

16.  Title 10, U. S. code, section 14701 states that, a Reserve officer may, upon application and subject to the needs of the service, be considered for continuation on the RASL by a selection board.  

17.  Army Regulation 135-156 (Personnel Management of General Officers), effective 1 May 2000, states that colonels not approved for Federal recognition in a higher grade will be removed on the first day of the month after the month of completion of 30 years of commissioned service.

18.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) states, in pertinent part, to be considered for Federal recognition in a general officer grade, the candidate must hold an appointment in the ARNG in the grade in which being considered and be assigned to a Federally-recognized general officer position.

19.  In the processing of this case an advisory opinion was obtained from the Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army.  That office noted that neither Title 37,  U. S. Code, section 501 nor Army regulations provided the authority to grant the payment of unused leave for soldiers in the applicant's situation.  That office noted that leave transfer between tours of duty is authorized if duty continued without a break in service exceeding a day but erroneously presumed that the applicant was retained on active duty in his new rank after he was separated on 31 October 2002.  That office went on to note the new changes in Title 37, U. S. Code, section 501 as described above.

20.  A copy of the advisory opinion was provided to the applicant, as a favorable opinion, for comment.  The applicant responded to a request for clarification of his status (verifying that he was immediately transferred to Headquarters, STARC, WAARNG after he was separated on 31 October 2002 and was currently serving as a member of the WAARNG) but did not specifically address the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not meet the statutory criteria to accumulate accrued leave in excess of 60 days under special leave accrual.  He was not deployed or ordered to active duty in support of a contingency operation.  

2.  Although the applicant served during a time of national emergency, he was not ordered to active duty or retained on active duty as a result of that national emergency.  He had already been ordered to active duty on 16 August 1999 for a period of 3 years, 2 months, and 13 days under Title 10, section 12301(d) in accordance with section 12310(a) and not under one of the sections identified in Title 10, section 101a(13).  

3.  In addition, there is no evidence that an injustice occurred in this case.  The applicant had previously sold back 54 days of accrued leave (in addition to          6 days sold back when he separated in October 2002); 60 days is the maximum normally permitted by law.  He should have been aware of regulatory admonitions against maintaining a 60-day leave balance and waiting until late in the fiscal year to take leave in case an operational situation requires the soldier's presence, which could cause him to lose leave.  That is exactly what happened in the applicant's case.  

4.  The applicant provides no evidence to show that he requested leave and was denied either during his tour with the Joint Chiefs of Staff or with Homeland Security.

5.  The statement of the Chief, Homeland Security in his undated memorandum to the NGB is noted.  He stated the applicant lost leave in part because, due to the short notice of separation, the applicant was unable to plan for or take leave as allowed under normal conditions.  This implies that had the applicant been given more notice [than the 17 September 2002 orders provided] then he would have been able to take leave. 

6.  The applicant did not have short notice that he would have to separate.  He should have been aware that he could not remain on active duty beyond           20 years of AFS.  He should have been aware that he achieved 20 years of AFS around September 2002 and that he would be mandatorily separated around that time.  It appears from the statement of the Chief of Staff of Homeland Security that, had the applicant informed his supervisor earlier than 17 September 2002 that he was required to separate around September 2002, he would have been allowed to take leave.
7.  Notwithstanding what appeared to be a favorable advisory opinion, the applicant did not meet any of the criteria instituted by the changes made to Title 37, U. S. Code, section 501 to be eligible to sell any unused leave without impact to the career sell back of leave.  He was not ordered to active duty in support of a contingency operation and he was not on active duty for less than 365 days.  Had he remained on active duty or in an active Reserve status, a case could have been made that he met the criteria for carryover of his excess leave.  However, as he returned to State control after he was separated on 31 October 2002 a leave transfer to his new status is not authorized.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tdh___  __kwl___  __rjw___  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.

		___Thomas D. Howarad__
		        CHAIRPERSON

INDEX

CASE ID	AR2003087646	
SUFFIX		
RECON		
DATE BOARDED	20040506	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	121.02	
2.	121.03	
3.		
4.		
5.		
6.