ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20170001653 APPLICANT REQUESTS: * correction to records to reflect no break in service from the period of 19- 28 September 2003 * acknowledge 16 days of leave accrued during the period of 1 March 2003 through 24 September 2003 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 267-0001 * Orders Number R-09-375167 * DD Form 214 (Certificate of Release or discharge from Active Duty) * Leave and Earnings Statement * Master Military Pay Account (MMPA) * Email correspondence and HRC FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect: * during the stated period of 19-28 September 2003, he was in a transitory duty status fulfilling obligation of service on two separate and distinct orders and service status * on 24 September 2003, he reported to the transition point, where he received his Return [sic] from Active Duty (REFRAD) order 267-0001 and his DD Form 214 * the REFRAD order indicates he was released from AD [active duty] on 19 September 2003, five days prior to the release date on the order, which is incorrect * during the period of 19-24 September 2003, he was clearing post and preparing rental property for inspection to terminate lease contract * in addition, on the DD Form 214 in item 12 (Record of Service), it shows he completed 6 months and 19 days of net active service this period, while item 16 (Days Accrued Leave Paid) indicates no paid leave * the MMPA does not reflect accrued leave during the AD service * on 25 September 2003, he rented a U-Haul, for a do-it-yourself move, loaded household goods, and had his final rental inspection by rental agency * he then drove to his home of record (HOR) arriving early morning on 26 September 2003 * on 26 September 2003, he completed unloading household goods and returned the U-Haul * on 27 September 2003, he boarded a flight from his HOR to to report to Army Guard Reserve Entry Training the following day * the break in service was discovered on 5 December 2016 by Mr. G_ H_, while reviewing the applicant’s DA Form 1516 [sic] (Chronological Statement of Retirement Points) 3. On 28 February 2003, Orders Number A-02-390708 issued by U.S. Total Army Personnel Command (PERSCOM) order the applicant to active duty under provision of Title 10 U.S. Code (USC), Section 12301(d) for a total of 29 days, reporting on 1 March 2003. 4. On 7 March 2003, the aforementioned order was amended, and Orders Number A-02-390708A01 extended the applicant to 179 days, ending on 26 August 2003. 5. On 13 August 2003, the original AD orders were further amended to 269 days, including accumulated leave, ending 24 November 2003. 6. On 27 August 2003, the applicant’s active duty orders dated 7 March 2003 were thrice amended to an earlier release from active duty (REFRAD) date of 19 August 2003. 7. On 3 September 2003, the applicant received Orders Number R-09-375167 ordering him to AD in Active Guard/Reserve (AGR) status and was to report to his first duty station on 8 October 2003. The orders also indicated he was to report “TDY Enroute At” Fort Sam Houston, TX for AGR Entry Training (AGRET), for a period of 28 September 2003 to 4 October 2003. 8. On 24 September 2003, Orders Number 267-001, reassigned the applicant to the transition point. The orders indicate “[a]fter processing, you are released from active duty not by reason of physical disability and assigned as indicated on the date immediately following REFRAD. […] If you are delayed in reporting to the transition point, you must still report to the transition point as soon as possible or as authorized to receive a new effective date of release from active duty.” The orders state the following: * “reporting date to transition point: 24 September 2003” * “date of release from active duty unless change/rescinded: 19 September 2003” 9. DD Form 214 (Certificate of Release or Discharge from AD) in the applicant’s service records shows the following: * in item 12 (Record of Service), the applicant entered AD this period on 1 March 2003 and was separated on 19 September 2003, for a total of 6 months and 19 days net active service * in item 16 (Days Accrued Leave Paid), “None” 10. A review of the applicant’s finance records shows an LES for the period covered through the check date of 31 October 2003. In the remarks column there is a data entry for: * original debt of $1,736.57 for 20 September 2003 to 30 September 2003 * pay & allowance debt balance $535.36 * original debt $535.36 20 September 2003 to 30 September 2003 * unpaid debt balance total: $2,271.93 10. On 2 October 2018, the staff of the ABCMR obtained an advisory opinion from the Office of the Deputy Chief of Staff, G-1. The Chief, Compensation and Entitlements Division, opined in the following: * after carefully reviewing the applicant’s case, he recommended the Board disapprove the request for relief * the records show the applicant was called to a period of AD beginning 1 March 2003 * at the end of the tour, his payroll records show he was overpaid through 30 September 2013 after the order terminated * the DD Form 214 serves as the supporting document to stop a Soldier’s pay * overpayments in these cases generally occur when the transition point does not provide a copy of the DD Form 214 to the finance office prior to the end of the month * the applicant’s pay report from December 2003 shows the correction to his pay account based on the dates listed on his DD Form 214 * thus correction generated a collection for the overpayment fir this time period * additionally, there is no indication in his service records that the he took or sold leave at the end of his AD period ending on 19 September 2003 11. Army Regulation (AR) 635-10 (Processing Personnel for Separation) states in paragraph 2-2b to start pre-separation processing for members to be separated before their normal separation date upon receiving information showing approval of separation. Orders Number 267-001, on 24 September 2003, ordered the applicant to report to the transition point on 24 September 2003 to be released from active on 19 September 2003. 12. A review of the applicant’s service and finance records are void of a DA Form 31 (Request and Authority for Leave) for leave time taken and/or charged during the time period of AD from 1 March 2003 to 19 September 2003. The MMPA provided and applicant’s LES do not reflect a balance of leave accrued, taken, or paid to the applicant before termination of orders on 19 September 2003. 13. AR 15-185 (ABCMR) states: a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and the advisory opinion were carefully considered. The applicant authenticated his DD Form 214 attesting to the accuracy. An advisory opinion was provided in reference to this case and the applicant did not provide a rebuttal. Based upon the preponderance of evidence, the Board agreed there was no error nor injustice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X :X :X DENY APPLICATION 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-10 (Processing Personnel for Separation) in effect at the time provides guidance for preseparation processing for Soldiers being released from AD. Paragraph 2-2 (Commencement of preseparation processing) states: a. Normal separation date. Start preseparation processing 120 days before the effective date of separation for members scheduled for normal separation upon completion of the period for which ordered to active duty or enlisted. b. Prior to normal separation date. Start preseparation processing for members to be separated before their normal separation date upon receiving information showing approval of separation. 3. AR 600-8-101 (Personnel Processing (In- and Out- and Mobilization Processing) applies to the Active Army, the Army National Guard (ARNG) and the U.S. Army Reserves (USAR). Installation clearance policies and procedures apply to all Active and Reserve Component soldiers, in the rank of colonel and below, transitioning from the Active Army or being reassigned to another location on a permanent change of station (PCS). Installation and unit commanders must develop and enforce procedures that notify support activities when soldiers will be departing on PCS or TCS or transitioning from AD. These activities must screen their records and identify any debts owed by departing soldiers. a. In the context of this chapter, transition means all soldiers being discharged, separated, retired, transferred to another service or component, or released from AD. (1) All Active Army and RC soldiers processing for transition will be out- processed per this regulation and issued a DD Form 214, as appropriate, per AR 635-5. (2) Upon notification of a soldier's pending transition, the commanders will- (a) Research the unit files to identify duty status changes and adverse actions that have occurred within the previous 60 days and annotate this information on the DA Form 137-1-R (Unit Clearance Record). (b) Require the soldier to initial each leave period, give the DA Form 137-1-R to the soldier, and instruct him/her to carry it to the transition point or center at final transition processing. (c) Commanders must immediately inform the servicing finance officer and other activities when a soldier will transition prior to the scheduled transition date to determine if the soldier owes debts and to start the collection process. 4. AR 630-5 (Leaves and Passes) states a. All members of the Active Army, the ARNGUS, and the USAR when serving on active duty for a period of 30 days or more are entitled to leave with pay and allowances at the rate of 2 1/2 calendar days for each month of active duty or active duty for training. b. Leave taken and leave credited will be accounted for on a fiscal year basis. When only a part of the fiscal year is considered, leave will be credited at the rate of 2 1/2 days for each month of active duty or active duty for training. c. When discrepancies are evident in an ending leave balance, corrections will be, administratively corrected within the chain of command for Soldiers not subject to separation from service and are reentering the service immediately. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001653 2