IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150004939 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150004939 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a.  showing he was not in an excess leave status for 20 days during the period: * 6 June 2013 through 21 June 2013 – 16 days * 3 July 2013 through 6 July 2013 – 4 days b.  showing a debt was established in the amount of $1,378.89 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting the record to show he had no excess leave and no debt was established. ______________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: 21 June 2016 DOCKET NUMBER: AR20150004939 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 not in an excess leave status for 33.5 days * remission of his debt in the amount of $3,421.69 2. The applicant states: a.  There was confusion regarding the starting and ending dates for his transition and convalescent leave. b.  He never signed out of his assigned unit on his original transition leave date due to his two surgical dates on 1 March 2016 and 6 June 2013, followed by convalescent leave for recovery. c.  Someone from the 212th Fires Brigade personnel office submitted a late-entry DA Form 31 (Request and Authority for Leave) with control number JK136XX for transition leave for the period 9 May 2013 to 6 July 2013 d.  The transition leave form was supposed to have been cancelled and replaced with the DA Form 31 with control number JK138XX for convalescent leave due to his shoulder surgery. e.  His second convalescent leave period ended on 21 June 2013. f.  On or about 5 July 2013, he sold his remaining 46 days of ordinary leave to the Army. g.  He owed $3,421.69 at the time of submission of his application to this Board. 3. The applicant provides: * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * two Standard Forms 600 (Chronological Record of Medical Care) * two DA Forms 31 * U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bliss, Orders 121-0024, dated 1 May 2013 * Final Pay Worksheet for the period 1 July 2013 to 6 July 2013 CONSIDERATION OF EVIDENCE: 1. Having prior honorable service in the U.S. Navy, the applicant enlisted in the Regular Army on 11 October 2006. 2. His Standard Form 600, dated 14 March 2013, shows he was seen for a post-operative follow-up evaluation after right shoulder surgery for type IV superior labral tear from anterior to posterior repair with biceps tenodesis as well as partial mid tendon rotator on 1 March 2013. He was directed to follow the physical therapy protocol for biceps tenodesis. (Medical resources show surgical recovery is usually approximately 4 to 6 weeks for biceps tenodesis.) 3. He provided an approved DA Form 31 with control number JK136XX, dated 2 April 2013, that shows he had an accrued leave balance of 71 days and an approved leave request for 59 days of ordinary leave for the period 9 May 2013 to 6 July 2013. 4. On 1 May 2013, he enlisted in the U.S. Army Reserve while in service. 5. U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bliss, Orders 121-0024, dated 1 May 2013, show he was ordered to report to the Fort Bliss Transition Center for his final outprocessing on 3 July 2013 with a separation date of 6 July 2013. 6. His DA Form 31 with control number JK138XX, dated 28 May 2013, shows he had an accrued leave balance of 68 days and an approved leave request for convalescent leave for 15 days for the period 7 June 2013 to 21 June 2013. 7.  His Standard Form 600, dated 18 June 2013, shows: * on 6 June 2013, he had left shoulder arthroscopy, labral debridement, rotator cuff debridement, and supectoral biceps tenodesis * he requested an updated physical profile to allow him to return to his unit or to allow him to transition to his Reserve unit * his temporary physical profile would be updated to reflect his post-operative status * he was directed to return in 4 weeks for reevaluation 8. His Final Pay Worksheet for the period 1 July 2013 to 6 July 2013 shows: * basic pay – 6 days * basic allowance for subsistence – 6 days * basic allowance for housing – 6 days * accrued leave – 46 days 9. On 6 July 2013, he was honorably released from active duty. His DD Form 214 shows: * he completed 6 years, 8 months, and 26 days of net active service * he was entitled to full involuntary separation pay * he was unable to electronically sign the form 10. On 14 April 2016, the Chief, Compensation and Entitlements Division, provided an advisory opinion in which he recommended denial of the applicant's request or provide the applicant the opportunity to provide a corrected leave form indicating he was on convalescent leave. He further stated: a.  The applicant's finance records indicate that he had previously sold 14 days of annual leave to the U.S. Government in 2006. He also sold 46 days of leave upon his separation, which came to the maximum amount of leave that can be exchanged for payment (60 days). b.  The applicant had a leave balance of 71.5 days when he submitted his DA Form 31, dated 2 April 2013, and he took 59 days, which left him with only 12 (12.5) days of unused leave. He sold 46 days, which left him with 33.5 days (46 days minus 12.5 days) of excess leave and the corresponding debt of $3,421.69 (daily pay rate of $102.14 x 33.5 days). 11. On 20 April 2016, a copy of the advisory opinion was sent to the applicant for review and for an opportunity to provide a response. On the same date, he indicated he did not have any additional documents to submit. 12. His records are void of and he failed to provide evidence showing he never started his transition leave, he contacted his unit or had someone else to contact his unit to notify them of his surgery and subsequent convalescent leave, or his convalescent leave was extended beyond the authorized 15 days. REFERENCES: 1. 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 60 days, less the number of days for which payment was previously made under this section after 9 February 1976. 2. Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies, operating tasks, and steps governing military personnel absences. a.  The DA Form 31 will be used for requesting leave. Chargeable leave will begin and end on post, at the duty station, or in the location from which the Soldier regularly commutes to duty. b.  Since 10 February 1976, Soldiers can sell or cash in no more than 60 days leave one time during a military career, except as authorized by Title 37, U.S. Code, section 501, as implemented by the Department of Defense Financial Management Regulation. c.  Paragraph 4-21 states transition leave (formerly called terminal leave) is a chargeable leave granted together with transition from the Service, including retirement. d.  Leave will be terminated at 2400 on the day of transition (concurrent with transition). Leave may also end upon reporting to the designated U.S. Army Transition Point not earlier than the reporting date specified on the Soldier’s order, upon return to previous unit of assignment, upon hospitalization, or upon death. e.  Table 4-1 (Requesting Transition Leave) shows the unit is to advise the Soldier that leave settlement is made on the actual transition date. The Soldier is to notify a reliable person of the itinerary and request that person to notify the transfer point should the Soldier become, for example, hospitalized, injured, or die before leave. f.  Convalescent leave is a non-chargeable absence from duty granted to expedite a Soldier’s return to full duty after illness, injury, or childbirth. g.  Physicians recommend a period of convalescent leave with full justification to the approval authority. The hospital commander or designee is the approval authority for convalescent leave for 30 days or less. The unit commander is the approval authority if the Soldier is not hospitalized. h.  Section VII (Sick-in-Hospital), provides guidance for non-chargeable absence and is used for periods of hospitalization. Soldiers on leave who are hospitalized while on leave will not be charged leave for that period. i.  Excess leave is defined as leave in excess of accrued or advanced leave. The Soldier is not entitled to pay and allowances for a period of such leave. Generally, a minus leave balance at the time of release from active duty, discharge, first extension of an enlistment, desertion, or death, is excess leave. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. The instructions for item 21 (Signature of Soldier Being Separated) stated: a.  The signature indicated the Soldier had reviewed the form and accepted the information as being correct to the best of his or her knowledge. b.  When the Soldier was not available (discharged in absentia or physically unable), enter "SOLDIER NOT AVAILABLE TO SIGN." c.  When the Soldier refuses to sign, enter "SOLDIER REFUSED TO SIGN." 4. Army Regulation 635-8 (Separation Processing and Documents), which superseded Army Regulation 635-5, prescribes policy and procedural guidance relating to transition management. It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition. The instructions for item 21 (Signature of Member Being Separated) state: a.  The signature indicates a Soldier has reviewed the form and accepts the information as being correct to the best of his or her knowledge. b.  Digital signature is the authorized signature method for Active Army. When the Soldier is not available (separated in absentia or physically unable), enter "SOLDIER NOT AVAILABLE TO SIGN." c.  When a Soldier refuses to sign, enter "SOLDIER REFUSED TO SIGN." d.  When a Solider is physically unable to digitally sign, enter "UNABLE TO DIGITALLY SIGN." DISCUSSION: 1. The evidence of record shows the applicant was granted transition leave for 59 days for the period 9 May 2013 to 6 July 2013 and he had a leave balance of 71.5 days. He would have had a remaining leave balance of 12.5 days had the entire 59 days been used as transition leave. 2. During his authorized period of transition leave, he had surgery on 6 June 2013 and he was authorized 15 days of convalescent leave for the period 7 June 2013 through 21 June 2013. His date of surgery and convalescent period, a total of 16 days, should not have be counted against his leave balance. 3. Although his Standard Form 600, dated 18 June 2013, shows he requested a physical profile update to allow him to return to his unit or to allow him to transition to his Reserve unit, his records are void of and he failed to provide any evidence showing he did not resume his transition leave. 4. He was ordered to report to the transition center on 3 July 2013 for his final outprocessing. His transition leave would have ended on his date of reporting to the transition center. His DD Form 214 shows he was unable to electronically sign the form. Since his DD Form 214 does not state he was unavailable to sign the form, any doubt about his reporting to the transition center should be resolved in his favor and he should not be charged leave for the period 3 July 2013 to 6 July 2016. 5. The applicant would not have been charged 33.5 days of excess leave or had a debt established in the amount of $3,421.69 had his date of surgery, authorized convalescent leave period, and reporting date to the transition center been properly factored into his transition leave period. 6. He would have been charged 13.5 days of excess leave (33.5 days - 20 days) and the debt established would have been $1,378.89 (daily pay rate of $102.14 x 13.5 days). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004939 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004939 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2