RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 February 2004                  
	DOCKET NUMBER:   AR2003091730

	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	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Robert L. Duecaster		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 he be allowed to recoup 16 days of leave lost during Fiscal Year 2002.

2.  The applicant states he was unable to use his leave due to the short notice for attendance at consecutive service schools. 

3.  The applicant provides copies of his orders to attend Officer Candidate School (OCS), the Armor Officer Basic Course (AOBC) and the Scout Platoon Leader Course; copies of his leave request; and copies of three of his Leave and Earning Statements (LESs).

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s enlisted records are not of record, and the only information on his available officer microfiche is his oath of office dated 6 September 2002. 

2.  On 8 April 2002 the applicant, then a staff sergeant (E-6), received orders to attend OCS at Fort Benning, Georgia, 2 June 2002 through 10 September 2002 and AOBC at Fort Knox, 17 September 2002 through 4 February 2003.

3.  A DA Form 31 (Request and Authority for Leave) dated 19 May 2002 shows:

•	He had 66.5 days of accrued leave and requested 29 days leave for the period 19 May 2002 through 5 March 2003;

•	13 days permanent change of station (PCS) leave from 19 May 2002 through 31 May 2002; 

•	TDY (temporary duty) at OCS from 1 June 2002 through 10 September 2002;

•	6 days regular leave from 11 through 16 September 2002;

•	TDY to AOBC from 17 September 2002 through 4 February 2003;

•	21 days regular leave from 4 through 24 February 2003; and

•	Permissive TDY from 25 February 2003 through 6 March 2003. 

4.  His orders were amended to place him on TDY to attend the Scout Platoon Leader Course 3 through 27 February 2003.

5.  On 1 May 2003 his unit commander submitted a memorandum on the applicant’s behalf requesting consideration of recoupment of 16 days of leave lost in fiscal year 2002.  The commander stated that the applicant had originally requested 24 days of leave but due to school dates was only able to take 8 days due to the short notice of attendance at the military schools. 

6.  The 1 – 30 September 2002 LES shows he had a leave balance of 84 days, no days of leave used in that fiscal year (FY), and 24 days in a use or lose status.  It also shows the applicant was in the pay grade O-1E (second lieutenant with prior enlisted service) with a pay base entry date of 11 September 1990.  

7.  The 1 – 31 October 2002 LES shows a leave balance of 62.5 days, no days of leave used in this FY, 24 days of leave lost, and 30 days in a use or lose status.

8.  The 1 – 30 April 2003 LES shows a leave balance of 61.5 days, 26 days of leave used, 16 day of leave lost, and 4 days in a use or lose status.  This LES also shows that his use or lose leave was adjusted to show 8 days used, 
19 – 26 May 2002, thereby reducing his lost leave to 16 days.

9.  On 22 July 2002 an advisory opinion was obtained from the Total Army Personnel Command.  The Chief, Personnel Service Branch, stated that the Army Leave and Pass program is designed to allow a soldier to carry the maximum amount of leave possible for the longest period authorized under the law.  Except for very specific exceptions in cases of service in hostile fire or imminent danger assignments, there are no waivers for carrying over any leave over 60 days.  The Chief stated that soldiers who wait to the end of a fiscal year to use their leave are aware that they risk losing it due to unforeseen requirements or situations.  He stated that the fact that the applicant was unable to take his leave due to attendance at the service schools does not meet the exception.

10.  A copy of the advisory opinion was forwarded to the applicant, on 29 July 2003.  No rebuttal or additional comment is of record.

11.  Title 10, United States Code (USC), section 701(f), states that a soldier may accrue and carry forward up to 60 days leave at the end of each fiscal year.  The only exception is that soldiers who serve for 120 continuous days in a area where hostile fire/immanent danger pay or in support of an ongoing operation may carry the excess to the end of the next fiscal year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a staff sergeant (E-6) with 11 years of service at the time he received his orders to attend OCS.  He would have been well aware of the 60-day maximum accrued leave carryover regulation. 

2.  Although the specifics of his application for and acceptance of a commission are not of record, he would have been advised of that acceptance and been given the projected date of his attendance at OCS before he received the actual orders to report.   

3.  The applicant has offered no evidence that he was precluded from taking leave in the 7 months prior to his orders to report to OCS or in the 2 months before his reporting date.  

4.  Further, the applicant had only requested 18 days leave, during FY 2002, despite knowing that he would have 24 days of use or lose on the books.

5.  There is no regulation or policy that will allow the Board to grant an exception to the 60-day maximum accrued leave carryover set in the law.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RJW__  ___MHM_  __RLD __  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.

		  _Raymond J. Wagner_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003091730	
SUFFIX		
RECON		
DATE BOARDED	20040219	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	1    Recoupment of leave lost	
2.		
3.		
4.		
5.		
6.