IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150011853 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: 23 August 2016 DOCKET NUMBER: AR20150011853 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 the California Army National Guard records of the individual concerned be corrected as follows: a. amending block 7 (Type of Leave) of the applicant's DA Form 31 (Request and Authority for Leave) for leave taken from 13 October through 29 October 2014 by: * deleting the checkmark reflecting "Ordinary" leave * replacing it with a checkmark in the "Other" block * adding an entry showing "Convalescent Leave" b. adjusting his AGR finance record based on the corrected DA Form 31 to show he has an ordinary leave balance of 17 days, and c. paying him 17 days of basic pay for the accrued balance of 17 days of ordinary leave, as allowed by law. 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 paying him benefits and entitlements above basic pay. _____________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: 23 August 2016 DOCKET NUMBER: AR20150011853 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, in effect, correction of a DA Form 31 (Request and Authority for Leave), for leave taken during the period 13 October through 29 October 2014, by changing it from ordinary to convalescent leave. He also requests reimbursement for those 17 days including all benefits and pay entitlements. 2. The applicant states, in effect: * he was a member of the California Army National Guard (CAARNG) and served in an Active Guard/Reserve (AGR) status * as a result of outpatient knee surgery, he had to take convalescent leave; his physician recommended 6 weeks * he requested convalescent leave through his chain of command, but the processing of his request was delayed * based on the State Surgeon's recommendation, the Commanding General (CG), CAARNG and 40th Infantry Division (Major General LAH) approved convalescent leave for only 30 days, denying the additional 17 days (13 October through 29 October 2014) * the delay in acting on his request caused him to report back to duty later than he would have, had he been given sufficient notice * the Inspector General (IG), CAARNG investigated this matter and clearly determined his personal [ordinary] leave had been unjustly used to cover the 45 days [sic, 17 days] of convalescent leave authorized by his chain of command * the CAARNG failed to follow procedures in the processing of his convalescent leave request; had they processed his request in a timely manner, he would have returned to duty rather than have the additional time charged as ordinary leave 3. The applicant provides: * document titled, "Timelines" * emails, dated between 25 August and 21 November 2014 * letter, dated 26 September 2014, signed by physician's assistant (Ms. AW) * two letters, dated 26 August and 3 November 2014, respectively, and signed by Dr. KE * 9 pages of civilian medical records * memorandum, dated 4 November 2014, Subject: Rebuttal of Decision re: Convalescent Leave for [applicant] * memorandum, dated 7 November 2014, Subject: Convalescent Leave Appeal * DA Form 1559 (IG Action Request), dated 15 December 2014 * letter, dated 19 March 2015, addressed to the applicant from the CAARNG Office of the IG * photocopy of an orthopedic surgeon's business card (Dr. KE) CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the Regular Army, the CAARNG, and the U.S. Army Reserve, the applicant reenlisted in the CAARNG on 19 February 1998. He served continuously through extensions, and rose to the rank/grade of sergeant first class/E-7. 2. He entered AGR status on 9 May 2005. 3. In or around August 2014 in anticipation of knee surgery, the applicant began providing information and documentation to his unit about his pending medical procedure. 4. On or about 12 September 2014 he underwent outpatient knee surgery performed by a civilian physician. His physician recommended 6 weeks of convalescent leave. The applicant requested convalescent leave for the period 13 September through 29 October 2014. 5. On or about 28 October 2014, the applicant and his chain of command were informed the State Surgeon's office (SSO) denied his request for convalescent leave that exceeded 30 days (i.e., 13 October through 29 October 2014). 6. On 4 November 2014, the applicant submitted a written rebuttal to the CG, CAARNG and the 40th Infantry Division. In his rebuttal statement, he argued the decision to deny him convalescent leave was not timely and, because of this, he was not given the opportunity to return to duty at the end of the approved period of convalescent leave (12 September through 12 October 2014, i.e., 30 days). 7. On 7 November 2014, the CG, CAARNG and 40th Infantry Division responded to the applicant's appeal. He stated he had concurred with the initial 30 days of convalescent leave, but, after reviewing the applicant's case, found no compelling reason to approve the additional 17 days. On this basis, he denied the additional convalescent leave. He directed the applicant's latter period of leave be charged as ordinary leave. 8. On 15 December 2014, the applicant filed an IG action request with the CAARNG IG. 9. On 19 March 2015, the CAARNG IG responded, stating in effect: a. The IG determined applicable Army regulations and policies had been followed when the applicant was charged for 17 days of ordinary leave instead of convalescent leave. b. Memorandum, dated 24 September 2013, issued by the Office of the Chief Surgeon, Army National Guard (NGB Command Surgeon), subject: Convalescent Leave for Title 32 AGR Soldiers, essentially permitted the State Surgeon and the Commander not to refer requests for convalescent leave beyond 30 days when it was determined there was no compelling reason for approval. National Guard Regulation (NGR) 600-5 (The AGR Program – Title 32 Full-Time National Guard Duty (FTNGB)), paragraph 3-6 (Leaves and Passes), subparagraph c, that was in effect at the time, permitted State Adjutants General to approve convalescent leave of 30 days or less. The regulation further stated referral to the NGB Command Surgeon for convalescent leave requests in excess of 30 days was required. c. The CG had reviewed the applicant's request for convalescent leave and found no compelling reason to approve the additional 17 days. d. During the course of the IG's inquiry, several contributing factors were discovered. (1) The SSO's policy required convalescent leave request packets to be submitted within 72 hours of the brigade-level's receipt. * it took the Brigade Medical Noncommissioned Officer (NCO) over 3 weeks to compile the required documentation and produce a complete convalescent leave request packet * because of this, the Brigade Medical NCO did not send the packet until 6 October 2014 * the convalescent leave request packet was then not reviewed until 20 October 2014; at which point only 30 days convalescent leave was approved (2) Had the applicant been informed in a timely manner of the decision to deny the convalescent leave in excess of 30 days, he could have made an informed decision to either take it as ordinary leave, or return to duty. 10. Orders Number 22-1047, dated 22 January 2015, issued by the CAARNG, released the applicant from active duty and AGR status effective 15 April 2015. A DD Form 214 (Certificate of Release or Discharge from Active Duty) was issued for his AGR period of service. 11. Orders Number 196-1047, dated 15 July 2015, issued by the CAARNG, honorably discharged the applicant and reassigned him to the Retired Reserve effective 1 August 2015. 12. On 5 April 2016, the SSO, CAARNG, provided the following response: a. On 6 October 2014, the SSO received a convalescent leave request packet pertaining to the applicant from the Brigade Medical NCO. After a review, the packet was forwarded to the Medical Review Officer on 9 October 2014. b. The Medical Review Officer's role was to review the packet and generate a DA Form 3349 (Physical Profile), if applicable. On 17 October 2014, after a review of the packet, the Medical Review Officer generated a memorandum for the State Surgeon's approval. c. The State Surgeon signed the memorandum, and the packet was forwarded to the CAARNG G-1. The CG received the packet for a final review on 22 October 2014. On 27 October 2014, the CG approved only 30 days of the requested convalescent leave. The Brigade Medical NCO was notified that same day. d. According to NGB policy, the NGB Command Surgeon is the approval authority for convalescent leaves of more than 30 days. The CAARNG SSO is responsible for submitting such requests to the NGB Command Surgeon. However, NGB policy permits the State Surgeon not to forward those cases deemed not to warrant the additional time. e. In the applicant's case, the State Surgeon felt the applicant should convalesce for 30 days, after which he was to return to work on light duty, and continue following his post-surgical rehabilitation plan. f. The applicant appealed the decision on 4 November 2014 and, on 7 November 2014, the CG again disapproved the additional time. g. The applicant and his unit did not submit all required paperwork, as outlined by CAARNG policy, which caused significant delays in the processing of his request. The applicant should also have been counseled that, should his convalescent leave request not be approved, any leave taken would be charged as ordinary leave. 13. In an advisory opinion, dated 22 April 2016, the NGB recommended approval of the applicant's request. a. The applicant underwent knee surgery on 26 September 2014 [sic, on or about 12 September 2014]. The applicant states he forwarded medical documentation prior to his surgery, and sent a request for convalescent leave on 9 September 2014. On 15 September 2014, the applicant forwarded his civilian physician's recommendation for 6 weeks of convalescent leave. The leave request was sent to the SSO on 9 October 2014, and the CAARNG G-1 reviewed it on 20 October 2014. On 28 October 2014, the G-1 recommended denial of the request for leave. b. The CAARNG IG determined a significant factor that contributed to the denial of leave was the late submission of the leave packet by the SSO [sic, Brigade Medical NCO]. It took over 3 weeks to complete the convalescent leave request packet. c. NGR 600-5 states that requests for convalescent leaves for periods over 30 days must be forwarded to the NGB Command Surgeon's Office for approval. After reviewing the applicant's records, the NGB Command Surgeon's Office concluded the procedure performed was of such a complexity, the NGB Command Surgeon's Office would have approved the applicant's leave request for the additional 17 days. d. The CAARNG SSO contends the applicant's convalescent leave packet was incomplete, but the email correspondence submitted by the applicant indicates the State Surgeon did not tell either the Soldier or the unit what documents were missing. (1) The applicant's request for convalescent leave was delayed through no fault of his own. Then, he was not informed of its disapproval of the additional 17 days until 27 October 2014 (after the 12 October 2014 end date of the convalescent leave approved by the CG and State Surgeon). (2) Due to the late notification of the denial decision, he was forced to use ordinary leave. (3) The applicant's request for the full 6 weeks of convalescent leave would have been approved by the NGB Command Surgeon's Office, had it been forwarded in a timely manner. Thus, the applicant should be reimbursed for the ordinary leave he was forced to use. e. This advisory was coordinated with the NGB Command Surgeon's Office, and the CAARNG concurred with the recommendation. 14. On 29 April 2016, the Case Management Division, Army Review Boards Agency provided the applicant a copy of this advisory for comment. The applicant did not provide a response. REFERENCES: 1. Army Regulation 600-8-10 (Leaves and Passes) prescribes policies and procedures for the use and administration of leave. It is applicable to active Army, Army National Guard/Army National Guard of the United States, and the U.S. Army Reserve. With regard to convalescent leave, it states convalescent leave is a nonchargeable absence from duty granted to expedite a Soldier's return to full duty after an illness, injury, or childbirth. 2. Title 37, U.S. Code, section 501, states a member of the Army who has accrued leave to his credit at the time of his discharge is entitled to be paid cash or by check for such leave on the basis of the basic pay to which he is entitled at the time of discharge. The number of days of leave for which payment is made may not exceed 60, less the number of days for which payment was previously made under this section after 9 February 1976. This limitation shall not apply, however, to a member of the Reserve Component while serving on active duty, full-time National Guard duty, or active duty for training for a period of more than 30 days, but not in excess of 365 days. DISCUSSION: 1. The applicant requests his ordinary leave be changed to convalescent leave. With this correction, he requests reimbursement of the 17 days, as well as all benefits and entitlements. (The applicant is now in the Retired Reserve.) 2. While it appears the SSO and the CG, CAARNG and 40th Infantry Division acted within policy and regulatory requirements in effect at the time, the preponderance of the evidence supports amending his DA Form 31 (Request and Authority for Leave). a. Significant delays, due to no fault on the applicant's part, occurred in the processing of his request for convalescent leave, forcing the applicant to use his ordinary leave. b. The CAARNG SSO's office did not submit the applicant's convalescent leave request to the NGB Command Surgeon's Office, and, while this was permitted by policy, the NGB Command Surgeon's Office states it determined there was sufficient basis to have approved the additional requested convalescent leave, had the CAARNG SSO forwarded the request. c. As a matter of equity, it would be appropriate to amend the applicant's DA Form 31 for the period 13 October through 29 October 2014 to show it was convalescent leave. 3. As the applicant is off AGR status and a member of the Retired Reserve, the provisions of Title 37, U.S. Code, section 501 apply to the payment of accrued ordinary leave. In this case, if the applicant has not exceeded payment of ordinary leave in excess of 60 days, then he should be paid his basic pay for 17 days of ordinary leave based on his corrected DA Form 31. Under this law, the applicant is not entitled to receive any allowances or pay entitlements except for basic pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011853 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011853 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2