IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20150004078 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 IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20150004078 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. IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20150004078 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 recoupment of 59 days of lost leave and correction of his rank/grade from private (PV1)/E-1 to specialist (SPC)/E-4. 2. The applicant states he turned in three signed DA Forms 31 (Request and Authority for Leave) between 8 May and 11 June 2013, for the processing of his transition packet and the issuance of Expiration Term of Service (ETS) orders. a. He turned in the first DA Form 31 (Request and Authority for Leave) with his transition packet at the squad level on 8 May 2013. He later realized his ETS date was incorrect and filled out a new DA 31 with his correct ETS date on 10 May 2013; he turned the corrected DA Form 31 in to his squad leader (noncommissioned officer (NCO)). b. He began looking for his ETS orders on or about 28 May 2013, and he called the Transition Center to see if orders were ready. The Transition Center informed him that his transition packet was not at the Transition Center. The applicant discovered his squad NCO and platoon sergeant (SGT) did not forward his transition packet to the company even though they continually told him they forwarded his packet. The applicant's squad NCO turned in his leave form after the applicant gave him his transition packet and the company approved his leave. c. The applicant received the signatures he needed to complete his transition packet and turned it in at the platoon level; his platoon leader told him to turn in his transition packet through his squad NCO. d. On 11 June 2013, the applicant had to use his first sergeant's (1SG) open door policy to get his packet up to the company. The 1SG saw him with the understanding that he was having trouble with the amount of transition leave days he could use. The applicant explained that he turned in his ETS packet 8 May 2013, but his packet had not made its way to the Transition Center for orders creation. He informed his 1SG that his packet was held because of a DA Form 31, even though the Transition Center said a working DA Form 31 was all right he was unable to start his transition leave without orders. The 1SG asked him when he was supposed to start leave and the applicant informed the 1SG his transition leave was supposed to start on 23 June 2013. The 1SG told him that they would have to get his transition packet to the Transition Center soon. The 1SG decided that because the Transition Center would need time to create orders, and the applicant still needed to clear the installation, he would need to sell 8 days of leave and start his transition leave on 2 July 2013. His ETS packet had still not arrived at the Transition Center for orders creation, six days after using the 1SG's open door policy. e. On 17 June 2013, the Transition Center called the applicant's unit to inform S-1 that his ETS packet could be processed through the Transition Center with a working DA Form 31. The Transition Center further informed the S-1 that once the packet arrived and they cut the orders, the company could then approve the applicant's DA Form 31; however, the applicant's transition packet needed to get to the Transition Center as soon as possible. f. On 18 June 2013, his ETS packet was still not at the Transition Center, even though the Transition Center spoke to the S-1 and informed S-1 personnel that his packet could be processed and orders could be cut using a working DA Form 31. The applicant went to the company later that day to revise his DA Form 31. When he arrived, the 1SG was not there. The applicant waited until the close of business, but the 1SG never returned. The applicant saw another platoon SGT at the company. This platoon SGT asked him why he was at the company. The applicant explained that he needed to revise his DA Form 31. The platoon SGT said he "Thought it was already at Transition.'' The applicant explained that his packet was not at the Transition Center because "It had got kicked back at [the lieutenant colonel's (LTC)] office." Apparently, the LTC did not believe his leave days were accurate. g. The applicant used his leave and earnings statement (LES) for the period ending on 31 May 2013 when he revised his DA Form 31, dated 11 June 2013. He used this LES because it was the most recent end of month LES and accurately reflected his leave balance. h. Major (MAJ) JSG was not the applicant's commanding officer during his ordeal. However, after the applicant's ETS MAJ JSG responded to the applicant's query about his leave by stating the applicant lost 33 days of leave, had not taken any leave and that the applicant had previously received payment for 60 days of leave. MAJ JSG’s response also addresses the applicant’s involuntarily separation and reduction to the lowest rank upon separation. However, MAJ JSG's response does not clarify that the applicant's discharge was honorable, that he was a retention control point Soldier with an authorized ETS date, or that he had 119 days of leave. i. The applicant's LES for the period ending on 31 May 2013 shows a credited leave balance of 107.0 days and by adding 2.5 days of leave for each month from June 2013 to September 2013 would give him a newly credited leave balance of 117.0 days. Since his unit did not allow him to take any leave before 31 September 2013, on 1 October 2013, he lost 29 days of use or lose leave, bringing his leave total to 88 days as of 1 October 2013. Additionally, he would have accrued 2.0 days of leave for the month of October 2013, which would bump his credited leave balance up to 90 days on his ETS date of 24 October 2013. Finance processed his separation pay 14 days after his ETS date and in accordance with Army Regulation; he was only able to sell back 60 of his 90 days of leave. This left him with 30 days of unused leave plus 29 days of use or lose leave and a total of 59 days of combined use or lose and unused leave. 3. The applicant provides: * three DA Forms 31, dated 8 May 2013, 10 May 2013, and 11 June 2013 * Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement (LES)), for the period 1 May 2013 - 31 May 2013 * Orders Number 289-0265, dated 16 October 2013 * DA Form 137-2 (Installation Clearance Record), page 2 of 2, dated 25 October 2013 * two DD Forms 200 (Financial Liability Investigation of Property Loss), page 1 of 2, dated 24 January 2014 and 18 March 2014 * memorandum, dated 11 March 2014 * letter to the applicant's Member of Congress, dated 8 September 2014 * self-authored statement, dated 21 February 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 9 October 2003. 2. He reenlisted on 20 October 2007. His DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows he held the rank/grade of SPC/E-4 on the date of his enlistment. 3. He provided three DA Forms 31 and an LES: a. The first leave form, dated 8 May 2013, shows the applicant's rank as SPC, indicates he accrued 104 days of leave, and that he requested to take 119 days of ordinary (transition) leave from 25 July to 20 November 2013. Additionally, his supervisor recommended approval of his leave. b. The second leave form, dated 10 May 2013, shows his rank as SPC and indicates he accrued 104 days of leave and requested to take 119 days of other (transition) leave from 23 June to 19 October 2013, and that he had 31 days of excess leave. Additionally, his supervisor recommended approval of his leave. c. He provided a copy of his LES for the pay period 1 to 31 May 2013. His LES shows he had a current balance of 107.0 days of leave, a current ETS leave balance of 199.0 days, and 42.0 days of use or lose leave. Additionally, this form shows his grade as E-4 and his ETS date as 19 October 2013. d. The third leave form, dated 11 June 2013, shows his rank as SPC, indicates he accrued 118 days of leave, and that he requested to take 110 days of ordinary (transition) leave from 2 July to 19 October 2013. Additionally, his supervisor recommended approval of his leave. 4. His record did not contain, and he did not provide any evidence to show why his unit reduced his rank/grade from SPC/E-4 to PV1/E-1. 5. He provided Orders Number 289-0265, issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bragg, Fort Bragg, NC, on 16 October 2013. These orders show his rank as PV1 and direct his reassignment to the U.S. Army Transition Center with a reporting date of 16 October 2013. These orders also state his date of discharge was 24 October 2013. 6. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the Army honorably discharged him, in the rank/grade of PV1/E-1, on 24 October 2013, because of completion of required active service. This form also shows he had 5 days of lost time (19 to 23 June 2013). 7. The applicant provided a letter, dated 8 September 2014, that MAJ JSG wrote to his Member of Congress. MAJ JSG indicated he was writing the letter in response to a congressional inquiry concerning the applicant's leave packet and separation issues. MAJ JSG stated the Army involuntarily separated the applicant and reduced him to the rank/grade of PV1/E-1 upon his discharge. MAJ JSG further stated the applicant did not take any of his leave, but rather received payment for 60 days of leave. The applicant lost 33 days of use or lose leave in accordance with Army Regulation 600-8-10 (Leaves and Passes). 8. The Office of the Deputy Chief of Staff, G-1 provided an advisory opinion, dated 7 May 2015. The advisory official recommended disapproval of the applicant's request for reimbursement of 59 days of unused leave and stated: a. Title 37, U.S. Code, section 501 (Payments for Unused Leave), paragraph (b)(3) states, "the number of days of leave for which payment is made may not exceed sixty, less the number of days for which payment was previously made under this section after February 9, 1976." The applicant's finance records indicate that he had previously sold 60-days of annual leave back to the Government, which is the maximum number of leave days that a service member can sell back/receive reimbursement for in a career. Consequently, there is no authority to reimburse him for any additional unused leave, regardless of the circumstances preventing his leave use. Army Regulation 600-8-10 cautions Soldiers who maintain a maximum leave balance (sold maximum number of leave days) that they risk loss of leave if the situation prevents them from taking leave before the end of the fiscal year/retirement/separation. b. The situation leading to the applicant's expedited separation and his inability to use all of his leave appears to be the direct result of his misconduct. c. Based on the fact that the applicant sold back the maximum of 60-days leave authorized by statute and that his separation from service was due to misconduct, this office finds no error or injustice occurred. 9. The ABCMR provided the applicant a copy of the advisory opinion; the applicant failed to respond. REFERENCES: 1. Title 37, U.S. Code, section 501(b)(3) states payment may not be made to a member for any leave he elects to have carried over to a new enlistment in any uniformed service on the day after the date of his discharge; but payment may be made to a member for any leave he elects not to carry over to a new enlistment. However, the number of days of leave for which payment is made may not exceed sixty, less the number of days for which payment was previously made under this section after February 9, 1976. 2. Army Regulation 600-8-10, paragraph 2-2b.(2) states, commanders will establish an annual leave program to manage leave designed to provide caution to Soldiers who do not take leave, that they may lose leave at the end of the fiscal year (FY). Also, Soldiers who maintain a 60-day leave balance, and wait late in the FY to take leave, will be informed that they risk loss of leave over 60 days if the operational situation requires their presence. 3. Army Regulation 600-8-10, paragraph 2-4b states, by law, payment of accrued leave is limited to 60 days one time during a military career. DISCUSSION: 1. The applicant's records did not contain, nor did he provide any evidence to show why his unit reduced him in rank. As such, there is insufficient evidence for the Board to make a determination on this portion of the applicant's request. 2. The evidence of record shows the applicant previously sold back 60 days of leave. By law, payment of accrued leave is limited to 60 days one time during a military career. 3. The law prevents the applicant’s recoupment of 59 days of lost leave. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004078 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004078 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2