PROCEEDINGS

	IN THE CASE OF:          

	BOARD DATE:               13 February 2001              
	DOCKET NUMBER:       AR2000045425

	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	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Shirley Powell		Member	
	Mr. Harry B. Oberg		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, retroactive payment for 60 days of accrued leave in conjunction with his reenlistment and reappointment.

3.  The applicant states that his request for payment for accrued leave was disapproved by the Human Resource Office, West Virginia Army National Guard, which cited a “no sell” policy.  He states he later found that this policy was nonexistent and that the authorization to execute the payment is in Chapter 35, Department of Defense Financial Management Regulation 70000.14-R.  In support of his application, he submits a copy of Chapter 35, Department of Defense Financial Management Regulation 7000.14-R, orders assigning him to active duty in the Active Guard/Reserve (AGR) program, and a DA Form 4187 (Personnel Action), dated 27 October 1999.

4.  The applicant’s military records show that he was appointed in a Title 32 AGR position in the West Virginia Army National Guard for the period 29 April 1993 through 28 April 1999.  He reenlisted and was reappointed in an Army National Guard AGR position for the period 29 April 1999 through 28 April 2005.  The applicant is currently serving in a Title 32 AGR position in the West Virginia Army National Guard in the rank of staff sergeant.

5.  The applicant provided a copy of a DA Form 4187 (Personnel Action), dated 27 October 1999, which shows he requested to sell 30 days leave effective 28 January 1999 at the time he reenlisted and was reappointed in the AGR program of the West Virginia Army National Guard.  This request was denied relying on an unpublished policy which was later determined not to exist.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy, Programs and Manpower, National Guard Bureau.  The National Guard Bureau opined that an exception to policy should be granted to authorize payment for accrued leave to the soldier.  

7.  On 13 August 2000, the applicant concurred with the advisory opinion rendered in his case. 

8.  Army Regulation 600-8-10 (Leaves and Passes) provides, in pertinent part, for the payment of accrued leave.  Paragraphs 2-4 f and g of this regulation state that payment of accrued leave is made to soldiers who elect partial payment and carry forward a balance to new or extended reenlistment.  This regulation also states that payment of accrued leave, for preceding periods of service, is not authorized to soldiers who elect to have all leave carried forward to new or extended reenlistment. This regulation also states that by law, payment of accrued leave is limited to 60 days one time during a military career.

9.  Title 32, United States Code, Sections 101 and 502(f) provide for the members of the Army National Guard of the States and territories to be ordered to “Full-time National Guard duty.”  Title 32 defines “Full-time National Guard duty as training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States in the member’s status as a member of the National Guard of a State or territory.  Personnel who are ordered to “Full-time National Guard duty” under Title 32 for the purpose of organizing, administering, recruiting, instructing, or training the Army National Guard of the United States are administered by the respective States and territories are members of the Active/Guard Reserve (AGR) Program.

10.  The office of the Judge Advocate General of the Army has opined in previous cases that this Board is empowered to change records of the Department of the Army and has no jurisdiction to change state records of the Army National Guard.  This restriction applies to the records of the members Army National Guard Active/Guard Reserve Program ordered to “Full-time National Guard duty” under the Provisions of Title 32 United States Code.

CONCLUSIONS:

1.  The applicant served in a Title 32 Active Guard/Reserve position in the West Virginia Army National Guard during the period 29 April 1993 through 28 April 1999.

2.  The applicant reenlisted and was reappointed in a Title 32 Active Guard/Reserve position in the West Virginia Army National Guard effective 29 April 1999.  Although the applicant’s application indicates that he requested to sell 60 days of accrued leave, his DA Form 4187 (Personnel Action), dated 27 October 1999, shows he requested payment for only 30 days of accrued leave.

3.  The applicant’s request for payment for accrued leave was denied based on erroneous information and through no fault of his own.

4.  The applicant’s service and his request for payment for accrued leave covered in this application to the Board occurred while he was a member of the Army National Guard of the State of West Virginia, not on Federal active duty.  Therefore, the Board has no jurisdiction to change state records.

5.  In view of the foregoing findings and conclusions, it would be appropriate, as far as the Department of Army is concerned, that the Adjutant General of West Virginia pay the applicant for up to 30 days of accrued leave as requested, provided he has not previously received payment for accrued leave.

RECOMMENDATION:

Insofar as Department of the Army is concerned, the Adjutant General of West Virginia should correct the records of the individual concerned to show that he is entitled to payment for accrued leave and to pay him monies due consistent with law and regulation governing payment of accrued leave.

BOARD VOTE:  

JH______  SP______  HBO____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		June Hajjar___________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045425	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010213	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	121.0000	
2.		
3.		
4.		
5.		
6.