BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150006630 BOARD VOTE: ___x______ _x______ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150006630 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: a. Adding to item 17 (Remarks ) of his DA Form 31 for the period 3 June 2013 to 1 September 2013, "Soldier performed 10 days of duty during the period of this DA Form 31. Ten days of accrued leave have been restored and he is authorized payment for those 10 days in addition to the 9.5 days previously paid." b. Requesting DFAS pay the applicant for the additional 10 days of restored accrued leave minus appropriate taxes. __________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: 2 June 2016 DOCKET NUMBER: AR20150006630 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 military personnel records to show he is authorized payment ($1,876.90) for ten days of restored leave. 2. The applicant states: a. He separated from the Regular Army (RA) on 1 September 2013 and entered the New Mexico Army National Guard (NMARNG). He was paid for 9.5 days of leave upon separation. For duty performed during his transition leave, ten days of leave were restored. He is entitled to payment for ten days of basic pay at the rate effective at the time of his separation ($187.69 per day x 10 days = $1,876.90). b. He was assigned to the U. S. Army Trial Defense Service (TDS) with duty a Fort Benning, Georgia. His detailing as a defense counsel was governed by the TDS policy which provides that detailed counsel remain assigned to a particular case until the action is complete or the counsel leaves TDS. The policy further provides that the term "when the counsel leaves TDS" excludes "periods of transition leave." The effect of this policy is that a detailed defense counsel remains responsible for the management of his client and cases while on transition leave. c. As part of this continuing responsibility, he performed normal defense counsel duties at Fort Benning on 6 June 2013, 14 June 2013, 17 June 2013, 26 June 2013, and 16 July 2013. Additionally, he travelled on temporary duty to Fort Campbell, Kentucky on 30 June 2013, and 1 July 2013 to perform his duties. d. These seven days represent leave not taken, but to which he is entitled under the provisions of Title 10, U. S. Code, Section 701 and Army Regulation (AR) 600-8-10 (Leaves and Passes). Since this accrued leave was not taken prior to separation from active duty, the applicant is entitled to payment for these days under the provisions of AR 600-8-10, paragraph 2-4. 3. The applicant provides– * DD Form 149 (Application for Correction of Military Record), dated 2 September 2013 * 25 March 2013 separation orders * DA Form 31 (Request and Authority for Leave) showing he requested 91 days of transition leave and departed on 3 June 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Leave and Earnings Statements for May 2013 through August 2013 * Final Payment Worksheet * TDS policy letter, dated 12 March 2012 * Memoranda dated 7 June, 17 June and 26 June 2013 showing the applicant performed duties during transition leave * DD Form 1610 (Request and Authorization for TDY Travel of DOD Personnel) * Documents relating to his temporary duty (TDY) travel * Army Review Boards Agency letter, dated 8 November 2013 * Advisory opinion from the Transition Policy Analyst, Army Human Resources Command (HRC), dated 6 November 2013) * DD Form 215 (Correction to DD Form 214), dated 24 June 2014 * DA Form 2142 (Pay Inquiry), dated 24 October 2014, with email notes CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Judge Advocate General's (JAG) Corps second lieutenant in the USAR effective 7 May 2005. He was promoted to first lieutenant effective 27 May 2007 and to captain effective 27 July 2009. 2. His DD Form 214, as corrected by a DD Form 215, shows he entered active duty as a member of the Regular Army on 8 February 2009. He served until 1 September 2013 when he was released from active duty and entered the NMARNG. His DD Form 215, dated 24 June 2014, shows a correction to item 16 (Days Accrued Leave Paid) to show 19.5 instead of 9.5. 3. A DA Form 31 shows he requested 91 days of transition leave and departed on 3 June 2013. 4. He provides evidence showing he performed ten days of duty while on transition leave in accordance with the policy of the TDS, 5. In the processing of this case an advisory opinion was obtained from the Chief, Entitlements Branch, Deputy Chief of Staff, G-1, Headquarters Department of the Army on 14 August 2015. The advisory official recommended: a. Approval of the applicant's request for reimbursement of ten days of basic pay for leave not taken at the time of separation in the amount of $1,876.90 minus applicable state and local taxes. b. The applicant provided sufficient evidence to verify he was on duty for a total of ten days while on transition leave. Since he already separated from active duty, leave cannot be restored but paid as an out-of-service claim. Recommend approval be sent to the Defense Finance and Accounting Service (DFAS) claim office for disposition of this case. 6. On 5 September 2015, a copy of the advisory opinion was provided to the applicant on 2 September 2015 for his comments and rebuttal. He did not respond. REFERENCES: Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. DISCUSSION: 1. The available evidence shows the applicant performed ten days of duty while on transition leave. 2. A DD Form 215 was issued after his separation date showing he was paid 19.5 days of leave instead of 9.5 days. 3. The advisory official supports paying him for his restored 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) AR20150006630 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006630 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2