BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160000222 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160000222 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160000222 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 correction of his records to show he was authorized to carry over 24 days of accrued leave from fiscal year 2015 into fiscal year 2016. 2. The applicant states due to duty requirements during the 27 months he served as the Commander, Detachment 2, Missing in Action (MIA) Office, in Vietnam, he was not able to take 30 full days of leave annually as authorized by the Army regulation. a. On 21 September 2015, when he was out-processing at the Finance Office, Schofield Barracks, HI, he was advised Army Regulation (AR) 600-8-10 (Leave and Passes), chapter 3 (Special Leave Accrual), allows a Soldier to carry over excess leave to the next fiscal year (FY). He was instructed to obtain a memorandum from his command (i.e., the Defense Prisoner of War (POW)/ Missing in Action (MIA) Accounting Agency (DPAA)), stating that he should be allowed to carry over 24 days of excess leave to the next FY due to mission requirements. b. On 22 September 2015, the Chief of Staff, DPAA, signed a memorandum supporting the special leave accrual and the applicant submitted it to the finance office. As of 30 September 2015, he had accrued a total of 84 days of leave. However, he lost 24 days of leave (effective 1 October 2015). He adds that he used leave (transition) for a period of his out-processing. c. He states finance office personnel should have opened a case while he was still on active duty and submitted the request as an exception to policy, but they did not. He retired from active duty on 30 November 2015 and he was instructed to apply to the Army Board for Correction of Military Records (ABCMR) to recoup the 24 days of accrued leave that should not have been lost due to mission requirements. 3. The applicant provides copies of his separation orders, DD Form 214 (Certificate of Release or Discharge from Active Duty), two memoranda, and a Defense Finance and Accounting Service (DFAS) Form 702 (Military Leave and Earnings Statement (LES)). CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable active enlisted service during the period 3 September 1986 through 2 September 1989. 2. He served on active duty as a commissioned officer of the Army from 21 May 1991 through 30 November 2015. He attained the rank of lieutenant colonel/pay grade O-5 (Regular Army) on 1 February 2008. 3. The applicant's Officer Record Brief shows he was assigned as the Commander, Detachment 2, U.S. Army Element Joint POW/MIA, Hanoi Vietnam, effective 3 June 2013. 4. A DD Form 214 shows the applicant was honorably retired from active duty on 30 November 2015 and transferred to the U.S. Army Reserve Control Group (Retired). He had completed 27 years, 6 months, and 10 days of total active service. It also shows in: * item 16 (Days Accrued Leave): Paid 5 * item 18 (Remarks): Service in Vietnam: 3 June 2013 – 14 September 2015 5. In support of his application, the applicant provides the following documents. a. Orders from the Directorate of Human Resources, U.S. Army Garrison – Hawaii, Schofield Barracks, HI: (1) Orders 091-0014, dated 1 April 2015, showing the applicant was released from his unit in Vietnam and assigned to Schofield Barracks, HI, with a reporting date of 31 August 2015 for separation processing and retirement from active duty on 30 November 2015. The additional instructions show he was authorized permissive temporary duty and transition leave. His command sponsored dependents were authorized travel to his home of selection. (2) Orders 204-0011, dated 23 July 2015, changing his reporting date to 14 September 2015. (3) Orders 265-0018, dated 22 September 2015, changing his reporting to 24 September 2015. b. Memorandum from DPAA, Washington, DC, memorandum, dated 22 September 2015, subject: Special Leave Accrual (Applicant), signed by the Chief of Staff, DPAA, states, "The Soldier was unable to take leave prior to and during his 27 month tour as the Detachment Commander in Vietnam; due in part to Joint Field Activities searching for our Vietnam War's MIA's in remote areas throughout his tenure. Therefore, he wasn't able to take a full 30-day[s] of leave annually as authorized by regulation. According to AR 600-8-10, Chapter 3, the Soldier should be allowed to carry over the 24 days of excess leave to the next fiscal year." c. His DFAS Form 702 for the period 1–31 October 2015 shows: * Entitlements: Hazardous Duty Pay Location: -$75.00 * Leave – * Brought Forward Balance: 60.0 * Earned: 2.5 * Used: 30 * Current Balance: 32.5 * Expiration Term of Service (ETS) Balance: 0.0 * Leave Lost: 24.0 * Leave Paid: 21.5 * Use/Lose: 0.0 * Remarks – * Used Leave Balance Adjusted * Current Month Leave Balance Adjusted * Nonchargeable Leave: 26 September 2015 – 1 October 2015 * Chargeable Leave: 2 October 2015 * Note: A review of the LES failed to reveal any information indicating the applicant was paid hostile fire pay or imminent danger pay d. Memorandum for Record from Bravo, 125th Financial Management Support Detachment (FMSD), Schofield Barracks, HI, dated 1 December 2015, subject: Special Leave Accrual (Applicant), signed by the Commander, Bravo, 125th FMSD, that states, "The Service Member came to the Finance Separations Office on Schofield Barracks on September 29, 2015 to correct his leave balance. At that time the Separations Office should have opened a Case Management System (CMS) case with DFAS to correct his leave balance. The CMS case was not submitted until 24 November 2015 with the case # 3109651. At that time, DFAS could no longer affect this account because he had entered a different pay status too close to his date of separation (30 November 2015). For the reasons listed above, [applicant] now needs to contact the ABCMR to correct his Special Leave Accrual." REFERENCES: 1. Title 37, United States Code, section 501 (Payments for unused accrued leave), provides, in pertinent part, that a member of the Army, Navy, Air Force, Marine Corps, Coast Guard or National Oceanic and Atmospheric Administration, 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 Treasurer of the United States for such leave on the basis of the basic pay to which he was entitled on the date of discharge. The number of days upon which payment is based may not exceed 60, less the number of days for which payment has been previously made (under such pertinent subsections) after 9 February 1976. 2. AR 600-8-10 prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System. a. Chapter 1 (Introduction), paragraph 1-4 (Responsibilities), states, in pertinent part, that finance officers will ensure proper computation of leave when official travel is involved and ensure proper posting of all leave to the LES. b. Chapter 2 (Policy for Leave) shows in: (1) Paragraph 2-2 (Annual leave program), the leave and pass program is designed to allow Soldiers to use their authorized leave to the maximum extent possible. It also provides a caution to Soldiers who do not take leave, that they may lose leave at the end of the FY. It further warns that Soldiers who maintain a 60-day leave balance, and wait late in the FY to take leave, will be informed they risk loss of leave over 60 days if the operational situation requires their presence. (2) Paragraph 2-3 (Leave accrual), that Soldiers on active duty earn 30 days of leave a year with pay and allowances at the rate of 2.5 days a month; however, this entitlement excludes certain specific periods of absence. c. Chapter 3 (Special Leave Accrual) shows in: (1) Paragraph 3-1 (Concept), 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. (2) Paragraph 3-2 (Authorization), in pertinent part, special leave accrual is authorized to Soldiers who served in an area in which he or she was entitled to hostile fire pay or imminent danger pay for at least 120 continuous days. (a) Soldiers who meet all the following conditions may also qualify for special leave accrual: * deployed for a lengthy period, normally 60 or more days * deployed to meet a contingency operation of the United States * deployed to enforce national policy or an international agreement based on a national emergency or in the need to defend national security * prevented from using leave through the end of the FY because of deployment (b) Commanders in the grade of O–5 or higher are the approval authority for Soldiers who serve at least 120 continuous days in an area in which the Soldier is entitled to hostile fire pay and imminent danger pay. Commanders will not approve special leave accrual until after the FY, when it becomes known how much leave the Soldier will lose. Leave accrual in excess of 60 days is credited only for use, not for payment. DISCUSSION: 1. The applicant contends, in effect, his records should be corrected to show he was authorized special leave accrual of 24 days (effective 1 October 2015), because his duty requirements during the previous 27 months precluded him from taking a full 30 days of leave annually as authorized by Army regulation and the local finance office failed to timely process his request for special leave accrual during his separation processing. 2. The applicant served more than 27 years on active duty and he retired in pay grade O-5. 3. The evidence of record shows the leave program is designed to allow Soldiers to use their authorized leave to the maximum extent possible. It also shows a Soldier is not authorized to carry forward more than 60 days accrued leave at the end of a FY (i.e., 30 September). 4. Records show the applicant served as the Commander, Detachment 2, U.S. Army Element Joint POW/MIA, Hanoi, Vietnam, from 3 June 2013 to on or about 14 September 2015. a. The evidence of record shows he was on a command sponsored (with dependents) overseas tour of duty. b. The evidence of record indicates the applicant may have been authorized hazardous duty pay during his assignment. c. On 22 September 2015, the Chief of Staff, DPAA, documented the applicant was unable to take leave prior to and during his 27-month tour as the detachment commander in Vietnam, as a result, he should be authorized special leave accrual of 24 days. 5. The evidence of record shows Soldiers who maintain a 60-day leave balance, and wait late in the FY to take leave, risk loss of leave over 60 days, if the operational situation requires their presence. 6. The evidence of record also shows commanders in the grade of O–5 or higher are the approval authority for Soldiers who serve at least 120 continuous days in an area in which the Soldier is entitled to hostile fire pay or imminent danger pay. a. It is noted that commanders will not approve special leave accrual until after the FY, when it becomes known how much leave the Soldier will lose. b. It is also noted the local finance office did not timely submit the special leave accrual and, as a result, it was not processed by DFAS. However, this fact is not an essential element in this case. 7. There is no definitive evidence that shows the applicant was deployed/serving in an assignment/area authorized hostile fire pay or imminent danger pay during the period of service under review. The applicant's October 2015 LES shows he brought forward 60 days of (accrued) leave from FY 2015 and he used 30 days of leave during FY 2015. This contradicts the information in the DPAA memorandum (i.e., "…he wasn't able to take a full 30-day[s] of leave annually…"). 8. The evidence of record fails to show the applicant was entitled to relief from the 60-day accrued leave balance at the end of FY 2015 under the special leave accrual program. (Note that special leave accrual in excess of 60 days is credited only for use, not for payment.) //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000222 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000222 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2