IN THE CASE OF: BOARD DATE: 1 April 2014 DOCKET NUMBER: AR20130010716 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, reimbursement for 47 days of accrued leave that were not paid at the time of his separation. 2. The applicant states he earned 47 days of leave; however, they were taken away without notification or explanation. 3. The applicant provides: * letter to the Defense Finance and Accounting Service (DFAS), dated 24 February 2012 * DFAS letter, dated 24 August 2012 * DFAS Forms 702 (Military Leave and Earnings Statement) for the periods 10 October 2007, 7 November 2007, 15 November 2007, and 31 December 2007 * DFAS-Cleveland Form 7220/148 (Retiree Account Statement), dated 9 April 2013 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. On 2 May 1986, the applicant accepted an appointment as a Reserve commissioned officer in the rank of second lieutenant. He entered active duty on 8 October 1986 and was released from active duty on 31 December 1996. He was promoted through the ranks to lieutenant colonel. 3. He was ordered to active duty effective 9 July 2004. U.S. Army Garrison Stuttgart Transition Center, Germany, Orders 264-001, dated 21 September 2007, released him from active duty and assigned him to the U.S. Army Reserve Control Group (Reinforcement) effective 30 September 2007. 4. The applicant's leave and earnings statement for 10 October 2007 shows he had a leave balance of 47 days. His leave and earnings statements for 7 November 2007 and 15 November 2007 also show he had a leave balance of 47 days. His leave and earnings statement for 31 December 2007 shows he had a leave balance of 3.5 days. 5. U.S. Army Human Resources Command, St. Louis, MO, Orders  M-11-702902, dated 19 November 2007, ordered the applicant to active duty not later than 23 November 2007 under partial mobilization authority in support of Operation Enduring Freedom for a period not to exceed 366 days. 6. On 30 November 2008, the applicant retired from active duty service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 November 2008 shows he completed 1 year and 8 days of active service during this period and 21 years and 11 days of total active service. 7. During the processing of this case an advisory opinion was obtained from the Department of the Army Office of the Deputy Chief of Staff, G-1, which states a DFAS audit of the applicant's leave history indicates that "between September 2007 and November 2007 he had a break in service. This break of at least 1 day between mobilization orders would require that any unused leave be cashed out at separation. This did not occur, nor was the 47 days leave carried over to the new mobilization order that commenced on 23 November 2007. Consequently, the applicant is due payment for the 47 days of unused annual leave based on the 2007 Base Pay Table rate for his grade and time in service." The Office of the Deputy Chief of Staff, G-1, recommended approval of the applicant's request for reimbursement for the 47 days of leave that were not paid upon his separation in September 2007. 8. Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System. It states that payment of accrued leave up to a limit of 60 days is permissible one time during a military career. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions have been noted and his supporting evidence has been considered. 2. The available evidence appears to show he is due payment for 47 days of unused leave based on the 2007 Base Pay Table rate for his grade and time in service. 3. In accordance with the applicable regulation, payment of accrued leave up to a limit of 60 days is permissible one time during a military career. 4. In view of the foregoing, the applicant's records should be corrected as recommended below. BOARD VOTE: ____X____ ___X_____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by paying him for 47 days of unused leave that were not paid upon his separation in September 2007 if otherwise eligible. ______________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) AR20130010716 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130010716 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1