ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20180004634 APPLICANT REQUESTS: In effect, the applicant requests that: a. His retirement grade be corrected to master sergeant (MSG) E-8, and; b. He be paid for 98 days of unused leave he had accrued at the time he was retired. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Court Remand dated 6 April 2018 * Letter, U. S. Army Human Resources Command, Special Compensation Branch, 10 September 2018, subject: Denial of Combat-Related Special Compensation (CRSC) claims for combat-related Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Disease compensation, with the enclosed application and supporting documents * Memorandum, U. S. Army Disability Agency, 18 November 2015, subject: Removal from TDRL (Temporary Disability Retired List ) Notification, addressed to the applicant as a MSG * Orders D 322-35, U. S. Army Physical Disability Agency, 18 November 2015, removal from the TDRL list on 18 November 2015, showing the rank MSG in the applicant’s name line * DA Form 31 (Request and Authority for Leave), signed 17 January 2014, showing at that date he was authorized leave from 1 February 2014 to 9 May 2014 (the form does not show that the applicant signed out on leave) * DD Form 4167 (Personnel Action), signed by the applicant 15 January 2014, requesting extension of his retirement from 2 March 2014 to 9 May 2014 * Physical Disability Information Report, dated 2 December 2013, showing his retired grade as E8 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (U.S.C.), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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. Incorporated herein by reference are records summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140003872 on 16 December 2014 in which the Board denied the applicant’s request to show that his retired grade was E-8/MSG finding no error in his retirement rank of sergeant first class (SFC). The Board referred the applicant to the U. S. Army Human Resources Command (HRC) to exhaust administrative resolution of his request for payment of 118 days (now claimed as 98 days) leave accrued at transfer to the Temporary Disability Retired List (TDRL). 3. On 6 April 2018, pursuant to a Motion for Voluntary Remand, the U.S. Court for Federal Claims (Court) remanded the retirement pay claim to the ABCMR for reconsideration of Title 10, U.S.C., section 1372(2) and any other applicable statutes and regulations regarding whether the applicant was serving in a temporary grade of E-8 pursuant to 9 August 2011 orders or otherwise. The Court also remanded the unpaid leave claim to the ABCMR for reconsideration so that the applicant may submit the claim to the Defense Finance and Accounting Service (DFAS) and present any challenge to the decision of HRC or DFAS to the ABCMR. Retirement Grade 4. Through counsel, the applicant contends he should have retired in the grade and rank of E-8/MSG instead of E-7/SFC. Via correspondence dated 1 April 2019 and 13 June 2019, counsel identifies orders as well as separation documents generated while the applicant was going through the Integrated Disability Evaluation System (IDES) purporting to support the proposition that the applicant was erroneously retired as an E- 7/SFC. Counsel’s contentions with respect to the specific orders are incorporated by reference as well as discussed below in conjunction with said orders and separation documents. 5. The applicant was promoted to sergeant first class (SFC) in the United States Army Reserve (USAR) effective 1 July 2010 by USAR Command Orders 10-180-00016, dated 29 June 2010. 2011 and 2012 Individual Mobilization Augmentee Orders 6. Effective 30 August 2011, by HRC Orders C-08-111173, dated 9 August 2011, the applicant as a SFC was reassigned in the USAR in a position of the G2 Intelligence Division Non-commissioned Officer in Charge (NCOIC), a MSG position. HRC Orders C-01-200467, dated and effective 9 January 2012, reflect the applicant continued in this MSG position. Counsel notes the applicant’s rank on both orders was listed as MSG. However, in the name line the applicant’s rank is shown as SFC. Further, neither of these represent promotion orders. This position was designated on both orders as a drilling Individual Mobilization Augmentee (IMA) position, meaning the applicant would perform reserve drill with this unit. The applicant was transferred to this assignment in accordance with Army Regulation 140-10, paragraph 2-6, which allows Reserve Soldiers to be voluntarily transferred into a position up to one rank higher than their current rank. These are voluntary assignments and not promotions to the higher grade. The transfer orders are in format 450, which, in accordance with Army Regulation (AR) 600-8-105 (Military Orders), is an order for transfer among reserve components, control groups, or units. The authority under which the order was issued was AR 140-145 (Individual Mobilization Augmentation (IMA) Program). In contrast to these orders, the orders format required for promotion to MSG is format 301, and the authority required for a promotion order for a Soldier in the Reserves is AR 600-8-19 (Enlisted Promotions and Reductions). 7. Pursuant to the Court remand instructions, the ABCMR shall consider whether this IMA position constitutes satisfactory service in a higher temporary grade pursuant to Title 10, U.S.C., section 1372(2). 8. On 25 August 2011, the applicant as a SFC was ordered to active duty by HRC orders A-08-118119, effective 15 September 2011, for 365 days for duty in Rotterdam, Netherlands, in support of Operation Enduring Freedom (OEF). 9. On 24 May 2012, the applicant as a SFC was retained on active duty by HRC orders A-05-209461, effective 29 May 2012, for 60 days at Warrior Transition Battalion, Fort Bliss, Texas. 10. On 8 June 2012, the applicant as a SFC was retained on active duty by HRC orders A-05-209461, effective 8 June 2012, for 179 days at Warrior Transition Battalion, Fort Bliss, Texas. 2012 MSG Promotion List 11. On 17 September 2012, HRC published a memorandum, subject: Promotion List to United States Army Reserve Individual Ready Reserve/Drilling Individual Mobilization Augmentee (USAR IRR/DIMA) Staff Sergeant through Sergeant Major Selection Board Results and Attendance at the Nonresident Sergeant Major Course (NRSMC) in accordance with AR 600-8-19. a. Paragraph 3 states that 132 SFC were considered for promotion to MSG and 26 were selected for 19.7 percent selection rate. b. Paragraph 4a states that Soldiers should be informed that because selectees are “sequenced” (Soldiers who show that they have a sequence number), promotions will occur as vacancies exist. c. Paragraph 4b states that the promotion list is subject to additional administrative reviews and is not to be construed as promotion orders. Accordingly, Soldiers listed herein should not assume that the structure of the list, or the presence of a name on the list constitutes a firm forecast for promotion. Promotion orders will be published by HRC Enlisted Promotions Branch. d. The FY12 Staff Sergeant-Sergeant Major RC IRR-DIMA Selection Board Results Menu shows the names of 126 SFC considered for promotion to MSG which included the applicant’s name and shows 23 of those named with a promotion sequence number next to their name. The applicant does not have a sequence number next to his name. The difference between the announced 132 considered and 26 selected and the 126 names shown as considered on the list and the 23 names shown as selected as indicated by having a sequence number next to their name is due to deletion of those considered who, by the release date of the list on 27 September 2012, were already retired, deceased, or otherwise no longer in the Army. Every name listed shows a Recommended Military Occupational Specialty (RMOS) at the next higher rank regardless of whether the individual has a promotion selection sequence number or not. e. The HRC website Facts and Answers to Questions (FAQs) on enlisted promotions states, a Soldier’s sequence number will be included on the selection list. If there is a sequence number beside the Soldier’s name, the Soldier was selected for promotion. Conversely, if there is no sequence number by the Soldier’s name, the Soldier was NOT selected for promotion. The applicant’s name on the subject list does not have a sequence number listed next to it indicating that the applicant was NOT selected for promotion to MSG. This interpretation of the selection board results comports with the relevant provisions in AR 600-8-19. f. The applicant’s counsel contends that, because the applicant had a RMOS listed next to his name, he was selected for promotion. However, this is contrary to the HRC release memorandum and instruction from HRC. Rather the memorandum specifically indicates the list is not a promotion order or a firm forecast for promotion. Additionally, if the contention was true, then every name on the list would have been selected for promotion which would have been a 100 percent selection rate. This is contrary to the release memorandum which stated only 19.7 percent were selected for promotion. g. Counsel further contends that because the applicant was on the list when he was placed on the TDRL, the applicant met the requirements of Title 10, U. S. Code, section 1372, which states that any Soldier retired for physical disability and who is placed on the TDRL, will be retired in the grade to which he would have been promoted. 12. Review of the 2012 DIMA/IRR SSG thru SGM Board promotion list indicates the applicant was considered but not selected for promotion. 13. Soldier Management System records reflect the applicant’s unit contacted HRC on 17 April 2013 inquiring about his promotion to MSG. HRC responded that the applicant was recommended but not selected and that he did not have a promotion sequence number. On 24 March 2014, the applicant contacted HRC about his promotion orders. HRC informed him that he was never on the promotion list. On 24 March 2014, the Inspector General (IG) called regarding the applicants promotion status. The IG was informed that although the applicant keeps stating he was promoted, the applicant was never promoted and was never selected for promotion by the 2012 promotion board. 14. On 27 March 2014, the Chief, Department of the Army (DA) Promotions Branch, HRC, issued a memorandum stating the applicant’s claim he should have his retirement order amended to the rank of MSG was “unsubstantiated.” While noting the applicant’s claim that he was promoted to MSG on the 2012 DIMNIRR SSG thru SGM Board, upon review of the promotion list, it clearly indicates he was considered but not selected for promotion. The HRC Chief noted that Soldiers recommended for promotion have a sequence number next to their name on the promotion list. Despite the applicant’s contentions that his branch refused to send him his promotion order, there was no promotion order published. The applicant was a member of the Warrior Transition Unit (WTU) and medically retired. The HRC Chief stated that available records available indicate the applicant was never promoted to MSG and was not on any Promotion Standing List on the day of his separation. 15. The 27 March 2014 HRC memorandum was provided to the applicant and his counsel who contended that the applicant remained on the selection board promotion list until his retirement in February 2014. 16. Service records reflect the applicant was counseled on 6 February 2014 for failure to obey a lawful order given to him by his company commander on 5 February 2014 to remove his MSG rank without promotion orders and to wear his proper SFC rank. Disability Retirement 17. On 14 November 2011, an informal Physical Evaluation Board (PEB) was held. On the DA Form 199 (Informal PEB Proceedings), the PEB found the applicant was physically unfit due to posttraumatic stress disorder (PTSD) and left shoulder degenerative joint disease with a combine disability rating of 60 percent and recommended he be retired for disability. On 27 November 2011, the applicant by his signature concurred with the recommendation, waived a formal PEB hearing, and indicated he did not request reconsideration of the Department of Veterans Affairs ratings. 18. On 6 December 2013, the applicant was notified by memorandum to report to the WTU, Fort Bliss, to begin processing for retirement for disability. The memorandum projected a release date of 2 March 2014 but stated that the applicant could be released sooner. 19. On 2 December 2013, based on incorrect information from an unknown source that the applicant was selected for promotion to MSG, U. S. Army Physical Disability Information Report (PDIR) data was posted showing that the applicant’s retired grade was E08 (MSG). In a 10 February 2014 email, the U. S. Army Physical Disability Agency (PDA) operations officer stated that initially when PDA loaded data on the applicant in the Military Personnel Transition Point Processing System (TRANSPROC), one of the PDA analysts had been told (source unknown) that the applicant was on the promotion consideration list for MSG and entered MSG in TRANSPROC. Upon further checking, the PDA found the applicant was on the promotion consideration list but did not have a promotion sequence number indicating he had not been selected for promotion to MSG. The PDA corrected the rank error (to SFC) in the PDIR and TRANSPROC on 10 February 2014. In the interim between 2 December 2013 and 10 February 2014, this data – i.e., that the applicant was selected for promotion to MSG – caused a number of separation document errors concerning the applicant’s correct retired grade as SFC, discussed in further detail below. 20. In 1 April 2019 correspondence, the applicant’s counsel contends that, when the applicant’s retirement orders are examined in a “chronological fashion” and not in a “categorical light,” they demonstrate his rank as MSG rather than SFC. Counsel then provides a sequential list of the applicant’s orders to stand for said proposition. 21. A review of the record reflects that, beginning on 13 January 2014, the following orders were issued: * Orders 013-0106, Fort Bliss, 13 January 2014, showing the applicant’s TDRL retirement effective date as 2 March 2014 and his retired rank as MSG * Orders 038-0167, Fort Bliss, 7 February 2014, amended order 013-0106 to show the applicant’s retired rank as SFC * Orders 042-0048, Fort Bliss, 11 February 2014, revoked orders 038-0167 * Order 071-0103, Fort Bliss, 12 March 2014, revoked orders 013-0106. Counsel contends this order amended, but did not revoke, orders 013-0106. However, the language of the order – showing in its action line to “revoke” orders 013-0106 – appears to be a complete revocation of orders 013-0106. The net result is that all the above orders were revoked. 22. Beginning on 11 February 2014, the following orders were issued: * Orders 042-0103, Fort Bliss, 11 February 2014, showing the applicant’s TDRL retirement effective date as 11 February 2014 and his retired rank as SFC * Orders 068-0029, Fort Bliss, 9 March 2015, amended orders 042-0103 to show the applicant’s retired rank as MSG * Orders 089-0001, Fort Bliss, 29 March 2016, revokes orders 68-0029 to the effect that the applicant’s retired rank is SFC The net result is that the above orders showing the applicant’s correct retired rank of SFC stand. While counsel contends orders 068-0029 amended the applicant’s rank to MSG, orders 098-0001 revoked this order. The original orders 013-0106 and its amendments and revocations were replaced by orders 042-0103 showing the applicant’s retired grade of E-7 and his rank of SFC in the name line. Accordingly orders 042-0103 showing the applicant’s retired grade of E-7/SFC and effective date of retirement at 11 February 2014 were the final orders in effect. 23. Several orders were also issued by the PDA during the applicant’s disability retirement processing. Counsel contends these lend further support to the claim that the applicant should have been retired as an E-8/MSG. a. PDIR, dated 2 December 2013, showing his retired grade as E-8. However, PDA corrected the PDIR on 10 February 2014 prior to the applicant’s transfer to the TDRL showing his rank as SFC. The PDA stated that MSG was originally entered because they were incorrectly told by unknown source the applicant had been selected for promotion. b. Memorandum, U. S. Army Disability Agency, 18 November 2015, subject: Removal from TDRL Notification, addressed to the applicant as a MSG. The memorandum enclosed the permanent order D 322-35 which also incorrectly showed the rank of MSG. Counsel contends these reflect the applicant retired as a MSG. However, PDA orders D 322-35 were amended by PDA orders D083-39, dated 23 March 2016, correcting the applicant’s rank in the name line from MSG to SFC. These orders do not designate a retired rank. c. Counsel contends the DA Form 199 (Informal PEB), dated 10 November 2015, showing the applicant’s rank as MSG is further proof that his correct rank was MSG. The rank of MSG on the DA Form 199 was corrected to SFC by a DA Form 199-2 issued by the PDA on 26 September 2018 as an administrative correction. 24. On 11 February 2014, the applicant was issued a DD Form 214 showing the date of his transfer to the TDRL as 11 February 2014 and his rank as SFC. The applicant refused to sign the DD Form 214. On 28 May 2015, a DD Form 215 (Correction to a DD Form 214) was issued changing the applicant’s rank on his DD Form 214 from SFC to MSG. On 11 August 2015, a second DD Form 215 was issued voiding the DD Form 215 issued 28 May 2015 changing the applicant’s rank from SFC to MSG on the DD Form 214 to the effect that the original DD Form 214 shows the rank of SFC. This was further confirmed by a DD Form 215 issued on 30 March 2016 that showed that the DD Form 215 that incorrectly showed the applicant’s rank as MSG was voided. The net result is that the applicant’s rank on his DD Form 214 for the period 15 September 2011 to 11 February 2014 is shown as SFC. 25. Counsel submitted a DA Form 2656 (Data for Payment of Retired Personnel) and a DA Form 108 (Application for Retired Pay Benefits) signed by the applicant on 4 December 2018 showing his retirement date as 3 December 2018 and the pay grade of MSG. A Fort Bliss Retirement Services Officer (RSO) signed as witness on the form. Counsel contends the RSO’s signature as a witness reflects an official confirmation that all the information contained on the form was accurate. However, according to the form, the RSO’s signature is only a witness that the applicant did in fact sign the form and did make the elections shown on the form. The RSO’s signature does not attest to the accuracy of the data on the form. Unpaid Leave Balances 26. The applicant contends he was not paid for his accrued leave at the time of his placement on the TDRL. In the original March 2014 ABCMR application, the applicant contended he was owed 118 days of unpaid leave, including regular leave, Post Deployment Mobilization Respite Absence (PDMRA) leave, and 20 days of PTDY leave. In more recent submissions to the ABCMR, dated in April and June 2019, the applicant’s counsel contends the applicant is entitled to 98 days of unpaid leave – via accrued leave and PDMRA. Counsel contends that errors and irregularities during out- processing prevented the applicant from being able to use or be paid out for his unused leave prior to service separation. In 1 April 2019 correspondence, counsel also requests that the Board “issue an order finally separating [the applicant] from the Army” and pay him for his accrued leave. Counsel’s specific contentions are addressed below with respect to each leave-related issue. Out-processing errors 27. In April and June 2019 submissions, counsel contends the applicant was improperly out-processed from the Army. He contends the applicant was separated from the Warrior Transition Battalion (WTB) on 12 February 2014 and was not properly out-processed in accordance with Army Regulation 600-8-101. While counsel has pointed to many alleged errors associated with the applicant’s out-processing from service, the relief sought appears to be for the Board to issue an order finally separating the applicant from the Army – which is moot because the applicant was already placed on the permanent disability retired list (PDRL) (PDA orders in November 2015) and medically retired – and to pay the balance of the unpaid accrued leave. Because the claimed harm arising from these out-processing errors revolves around the accrued leave issue, they are discussed below. 28. In April and June 2019 correspondence, Counsel states that out-processing procedures are in place to protect the interests of the Army as well as its Soldiers; however, none of the necessary out-processing forms were completed for the applicant’s separation. Thus, the applicant’s retirement interests suffered from the harm AR 600-8-101, paragraph 3-2 was designed to avoid. Counsel contends: a. Pursuant to AR 600-8-101, Soldiers are guaranteed five-working days out- processing, unless it is deemed he or she can out-process more quickly. He contends the applicant was deprived of his guaranteed five-day minimum out-processing. b. But for the Army’s failure to adequately out-process him, the applicant would have received his entitled 98 days of approved leave to use prior to retirement. Because of the applicant’s defective out-processing, and despite his submittal of a leave packet, he was denied his leave. According to the DD Form 214, dated 11 February 2014, the applicant has yet to be paid for any accrued leave. The out-processing service station is in place to ensure the accuracy in a Soldier’s assignment eligibility prior to publishing orders. c. The applicant’s retirement orders reflect his separation prior to his approved leave; even though all documents in the retirement packet recommend him to have a “separation date [of] 2 March 2014[, with a] 90-day extension until 9 May 2014 in order to cover the clearing time and 98 days of transitional leave.” Counsel contends the applicant’s DD Forms 214 show that he was never given the separation date of 2 March 2014, nor was he granted the 90-day extension to cover the clearing time and the 98 days of transitional leave. Moreover, the applicant did not sell his 98 days of transitional leave, therefore he was deprived of his rightfully owned accrued leave. Counsel contends this resulted in a gross loss to the applicant equating to $597,584.40. d. The first DD Form 214 for retirement which was produced for the applicant showing his rank as MSG, dated 11 February 2014, stating that his effective retirement date is 11 February 2014. He contends the only retirement document that the applicant saw and actually signed prior to its filing was the Data for Payment of Retirement Personnel, dated 4 December 2018. e. Because the applicant never received nor completed his required DA Form 137-1 and 137-2, his transition was far from smooth. Because he lacked the necessary out- processing forms, the applicant was unable to delineate a set departure date from the WTU. Moreover, because the applicant was not properly out-processed, he was deprived of the opportunity to correct any errors that would have been discovered during his out-processing. For example, he was never permitted to review a personnel tempo individual event history sheet at least 30 days before departure. This is evidenced by the lack of documentation in the applicant document history. If he was properly afforded the opportunity to review his own out-processing documents, there would be a DA Form 137-1 and 137-2 signed by a unit official and the applicant. There is no such signed document. Counsel further contends the applicant did not receive a required briefing on unit-level clearance requirements. He contends the Army lacks any factual evidence to prove the applicant was provided all necessary out-processing documents and the applicant relied on representations from others that all required forms had been submitted. 29. In contrast to these contentions, review of the record reflects that, following the PEB recommending a disability retirement, on 6 December 2013, the applicant was notified by memorandum to begin processing for disability retirement. The memorandum directed the applicant to report to the Fort Bliss WTB S1 within 24 hours to begin out-processing in accordance with MILPER message 09-067. Further, WTB records reflect his squad leader went with the applicant on 13 January 2014 to transition center to pick up his clearing papers. Thus, he had from 7 December 2013 to 11 February 2014 to out-process. Records from the WTB and the Transition Center RSO indicate the applicant refused to sign documents for clearing and out-processing. 30. The 31 January 2014 DA Form 4187-1-R granted an extension of this separation date by PDA from 2 March 2014 to 27 March 2014 in order for the applicant to take the 50 days accrued leave for which he was authorized. However, the applicant refused to sign his DA Form 31 to take his authorized transition leave. 31. In a 16 April 2019 memorandum, the WTB Human Resources Specialist (HRS) stated the applicant was provided all out-processing forms and documents by the WTB out-processing clerk, to include the applicant’s PERSTEMPO report and leave application. The applicant was to take these forms and documents to the Fort Bliss RSO for out processing and bring back to the WTB completed documents for out- processing review. The WTB HRS stated that the applicant did not bring back any of the required documents to the WTB out-processing clerk. In a 16 April 2019 memorandum, the Fort Bliss RSO stated the following forms were provided to the applicant by the Fort Bliss Transition Center during his final out-processing but he failed to turn them in completed: (1) DA Form 137-1 (Installation Clearance Record) (2) DA Form 137-2 (Unit Clearance Record) (3) PERSTEMPO Report 32. The Fort Bliss RSO further stated that the applicant refused to sign his DD Form 214 (Certificate of Release or Discharge from Active Duty) which so annotated on his DD Form 214 in box 21 in accordance with regulation; he refused to sign his DD Form 2656 (Data for Payment of Retired Personnel); and, he failed to properly complete his DD Form 2648-1 (Transition Assistance Program Checklist). The WTB S-1 Officer also stated that the applicant was issued separation documents including DA Form 137-1, DA Form 137-2, and PERSTEMPO Report, but did not return the completed forms to the unit. In 13 June 2019 correspondence, counsel contends that the RSO told the applicant he had all the required documents for his out-processing. 33. In a 28 March 2014 memorandum, the applicant’s WTB company commander stated the applicant refused to sign his DA Form 31 (Request and Authority for Leave), dated 31 January 2014, for 50 days accrued leave from 6 February 2014 to 27 March 2014. The Company Commander stated that the applicant did not want to sign the DA Form 31 because it did not include leave days for PDMRA and showed his rank as SFC. When it was learned that the applicant was not entitled to PDMRA leave, a prior DA Form 31, dated 27 January 2014, requesting 98 days leave including 52 days for PDMRA leave to which the applicant was not entitled, was voided and the new DA Form 31, dated 31 January 2014, was issued. 34. The applicant’s company commander stated the applicant refused to sign any documents pertaining to his medical retirement. After he consulted with his legal 10 advisor, the company commander issued a memorandum authorizing the applicant’s out-processing. When his unsigned DA Form 31 was turned in to the Transition Center, he was told that if the applicant refuses to sign, the leave days must be sold. His separation documents were processed by the Transition Center and his orders for release from active duty and transfer to the TDRL were effective the same day, 14 February 2014, since the applicant would not sign his leave form. As attested to by the applicant’s company commander, the WTB HRS, and the Transition Center RSO, the applicant was provided all necessary retirement documents, saw them, and refused to sign them. To the extent there were irregularities during out-processing, these appear to have resulted from the applicant refusal to sign or return the required paper work. Post Deployment Mobilization Respite Absence (PDMRA) 35. In June 2019 correspondence, counsel contends that, if the applicant was afforded his right to have a PDMRA recalculation, his leave would have been appropriately accounted for. Counsel contends the applicant did meet the boots on the ground requirements to be eligible for PDMRA leave. In April 2019 correspondence, counsel appears to contend that the applicant may have 98 days of accrued leave owed to him irrespective of the PDRMA. 36. On 6 January 2014, a Fort Bliss WTB S-1 Human Resource Assistant used the Army National Guard (ARNG) PDMRA online application to calculate the PDMRA to which the applicant was entitled based on his mobilizations. Based on the applicant’s mobilizations dates from 1 August 2011 to 14 September 2011 and from 15 May 2011 to 20 May 2012, it was determined he should be entitled to 52 days of PDMRA administrative leave. In accordance with the DA Personnel Policy Guidance (PPG) for Overseas Contingency Operations, the applicant would have to apply to HRC for approval of the PDMRA leave. 37. On 15 January 2014, the applicant requested on a DA Form 4187 (Personnel Action) that his projected separation date of 2 March 2014 be extended 90 days to 9 May 2014 to allow him to use the 52 days of PDMRA administrative leave and 46 days of regular leave for a total of 98 days leave. The DA Form 4187-1-R provided by the applicant shows that approval was recommended by his chain of command, but the form does not show that it was approved by the approval authority. Submitted with the DA Form 4187 as required was a DA Form 31 (Request and Authority for Leave), signed by the applicant on 27 January 2014, requesting 98 day’s leave (PDMRA administrative leave from 1 February 2014 to 24 March 2014 which is 52 days, and regular leave (transition) from 25 March 2014 to 9 May 2014 which is 46 days). The leave request was approved by the approving authority, the company commander, on 27 January 2014. Also submitted with the DA Form 4187 as required was the applicant’s Leave and Earnings Statement for the period ending 31 January 2014 showing that he had 46.5 days of accrued leave. After learning the applicant was not eligible for PDMRA leave, the PDA which was the approving authority for the 90 days extension, approved on the DA Form 4187-1-R leave for 51 days and a separation date of 28 March 2014. 11 38. In a 18 March 2014 memorandum, the PDMRA Gray Area 2 (GA2) Office stated that a review of the applicant’s request for PDMRA GA2 leave had been completed and was disapproved. In accordance with Public Law 112-120 [H.R. 4045], dated 25 May 2012, GA2 only applies to individual qualifying orders that commenced before 01 October 2011 and continued on or after 01 October, 2011. PDMRA GA2 law was enacted to identify and correct errors specifically related to the calculation of PDMRA benefits that may have occurred or resulted from relevant changes that took effect on 01 October 2011 in accordance with Title 10, U.S.C., section 12301(d). The applicant’s orders A-08-118119 with duty at Rotterdam, Netherlands, during the above period were non-qualifying orders for PDMRA GA2 due to not meeting the requirement that a minimum of 50 percent of the order duration was spent with boots on ground in Iraq, Afghanistan, or Kuwait during this specific time frame. In addition, the PDMRA calculation for the applicant indicates 37 days of PDMRA were earned during the prior mobilization, 31 August 2010 through 30 August 2011. The applicant’s DD Form 214 for this period reflects 29 days of PDMRA were allotted and utilized from 17 August 2011 through 14 September 2011, leaving a balance of 8 days of PDMRA. Unfortunately, because these additional days were not expended prior to the applicant’s release from that period of active duty and the beginning the follow-on active duty order under Title 10, U.S.C., section 12301(d) OCONUS, those 8 days of PDMRA were void. 39. DA PPG for Oversees Contingency Operations, paragraph 8-10, states that PDMRA is to be used as a period of "administrative time-off/pass" to reintegrate with family after an arduous deployment or prolonged family separation. If the PDMRA is not used, there is no option for cashing in unused PDMRA days for pay at separation or release from active duty. 40. On or about 18 March 2014, HRC PDMRA GA2 section notified the PDA, the Soldier’s command, and the applicant that he was not eligible for PDMRA leave. Accrued Leave 41. Counsel provides a DA Form 4187 requesting a ninety (90) day extension of the applicant’s then 2 March 2014 projected separation date signed by the applicant’s company commander on 15 January 2014 and submitted to the PDA through chain of command who recommended approval on the DA Form 4187-1-R (Personal Action Form Addendum). The copy of the DA Form 4187-1-R does not contain the final decision and approval which would appear in box 3c. The final decision was made by the PDA to grant only 51 days leave. Counsel provides a copy of the DA Form 31 (Request and Authority for Leave) which was an enclosure to the DA Form 4187 requesting 98 days leave signed by the applicant on 27 January 2014 and approved by his supervisor and his approving authority (company commander) on 27 January 2014. The remarks on the DA Form 31 state, “[the applicant] has a total of 98 days of leave as calculated as of 27 Jan 14, [he] will begin PDMRA 1 Feb 14-24 Mar 14, then [he] will start Transition Leave on 25 Mar 14 - 9 May 14.” More recently in April 2019 correspondence, counsel appears to contend the 98 days do not include 52 days for 12 PDMRA. However, the DA Form 31 explicitly states that it does include PDMRA leave from 1 February 2014 through 24 March 2014 (52 days), and Transition Leave from 25 March 2014 through 9 May 2014 is (46 day), equaling 98 days. Another of the enclosures to the DA Form 4187 was the applicant’s Leave and Earnings Statement (LES) printed on 24 January 2014 showing that the applicant had 46.5 days accrued regular leave as of 24 January 2014. 42. Counsel also references MILPER message 09-067, paragraphs 5c and 5d, entered in the remarks on the DA Form 4187 stating that the request for the 98 days leave was in accordance with the message. The cited paragraphs provide the following. a. Paragraph 5c: “In accordance with AR 600-8-10, Soldiers separating due to disability are authorized to cash-in leave in accordance with the provisions of law or to use accrued leave as transition leave. Approval authority for transition leave that results in exceeding the 90-day NLT date is the first colonel/O-6 in the Soldier's chain of command. When such leave is approved, the transition Center will contact USAPDA Chief, Retirements and Separations branch … to coordinate the extension of the 90-day NLT date.” b. Paragraph 5d: “Requests for extension of the 90-day NLT date for situations other than use of accrued leave may be considered based on extenuating circumstances. USAPDA is the approval authority for these requests. The soldier's request must be endorsed by the first colonel/O-6 in the Soldier's chain of command and set forth the extenuating circumstances. Send requests and supporting documentation, if applicable, through the installation transition center, to USAPDA, (Operations), […] The transition center must inform the Soldier's PEBLO of the action and outcome.” 43. By law, payment of accrued leave is limited to 60 days. 44. The applicant’s LES for 31 January 2014 showed he had 46.5 days accrued leave. It also showed he would have 56 days use or lose leave at the end of his active duty tour which included the 46.5 days accrued leave and the potential future 9.5 leave days he would earn at 2.5 days per month based on his projected end of active duty – 27 March 2014. 45. On 29 January 2014, the applicant submitted a request to the PDA to extend his then 2 March 2014 separation date to 9 May 2014 to be able to take the 98 days leave he had applied for on 27 January 2014. On 5 February 2014, the PDA approved an extension until 28 March 2014 to allow the applicant to take the 51 days leave according to his 31 January 2014 request for leave, finding the applicant was not eligible for 98 days leave. 46. The DD Form 214 issued on 11 February 2014 shows that the applicant was not paid for any accrued leave. On 31 January 2015, a Defense Joint Military Pay System - Reserve Component Master Military Pay Account (DJMS-RC MMPA) – Current Month 13 Leave Balance report showed that the applicant on that date had a leave balance of 47.5 days. 47. On 18 December 2018, a DJMS-RC MMPA Leave Balance Report produced by the Defense Finance and Accounting Service showed that the applicant still has 47.5 days of accrued leave not paid to the applicant. The report provides a detailed accounting of leave earned and leave used from 1 September 2007 to the applicant separation to the TDRL on 11 February 2014. It properly does not include any leave balance for PDMRA since PDMRA leave is not accruable or payable. In accordance with the DA PPG for Overseas Contingency Operations, paragraph 8-10, if the PDMRA is not used, there is no option for cashing in unused PDMRA days for pay at separation or release from active duty. On 22 February 2019, a JUMPS-RF LES History Display show that the applicant continues to have a leave balance of 47.5 days. 48. On or about 18 March 2014, HRC PDMRA GA2 section notified the PDA, the Soldier’s command, and the applicant that he was not eligible for PDMRA leave. Accordingly, the PDA noted on the DA Form 4187-1R, box 3c(5), an extension only to 28 March 2014 in order to use 51 days of accrued leave (46.5 days as of 24 January 2014 and 4.5 days which would be earned during the period from 25 January 2014 through 28 March 2014). The request for 90 days extension was denied. Accordingly, the Soldier’s command voided the DA Form 31 requesting 98 days leave and issued a new DA Form 31 for 50 days leave from 6 February 2014 through 27 March 2014. The company commander recorded on this new DA Form 31 that the applicant refused to sign it as well as refused to sign any of the out-processing or retirement documents. As a result, the applicant’s company commander directed the applicant be processed out with Orders 042-0103, issued by Headquarters, United States Army Garrison, Fort Bliss; dated 11 February 2014, showing his effective retirement date and date he was placed on the TDRL as 11 February 2014. This resulted in an unused accrued leave balance of 47.5 days – this number differs from the 51 days initially projected because the applicant was placed on the TDRL as of 11 February 2014, and not 28 March 2014 as initially projected. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief and amend the decision set forth by the ABCMR in Docket Number AR20140003872 on 16 December 2014. 1. The Board did not find sufficient evidence of an error or injustice regarding that portion of the applicant’s claim pertaining to his request that his retirement grade be corrected to master sergeant (MSG)/E-8. a. The Board found the 9 August 2011 and 9 January 2012 orders assigning the applicant, as a Sergeant First Class (SFC)/E-7, to a MSG position as a drilling Individual 14 Mobilization Augmentee (IMA) did not reflect promotion to MSG or that he was serving in a temporary grade of E-8. Neither order is a promotion order. The applicant was voluntarily transferred into a position one grade higher than his grade pursuant to Army Regulation 140-10, paragraph 2-6. The Board found this assignment did not reflect service in a higher temporary grade pursuant to Title 10, U.S. Code, section 1372(2). b. The Board found the applicant was considered, but not selected, for promotion to Master Sergeant by the 2012 Drilling Individual Mobilization Augmentee/Individual Ready Reserve (DIMA/IRR) SSG thru SGM Board. Individuals on the list who were selected for promotion had a sequence number next to their names and those who were not selected did not have a sequence number next to their names. The applicant did not have a sequence number next to his name and thus was not selected for promotion to MSG/E-8. The applicant’s Branch did not send the applicant a promotion order because he was not selected for promotion, thus there was no promotion order to publish or send to the applicant. The board found the provisions of Army Regulation 600-8-19, paragraph 1-20, that states “Soldiers who are on a promotion list at the time of separation for disability will be promoted to the designated grade effective the Soldier's separation date,” were inapplicable in the applicant’s case because he was not selected for promotion based on the absence of a sequence number next to his name. The memorandum released with the selection board results specifically indicated the list was not a promotion order. The applicant was not selected for promotion and, had he not been medically retired and remained in the DIMA/IRR, he would not have been promoted according to the 2012 selection board list. c. The Board found that any orders published showing the applicant was being retired in the pay grade of E-8 were published in error. The evidence of record indicates that the orders published showing he was retired in the pay grade of E-8 were published based on erroneous information indicating the applicant held promotion list standing. However, once it was verified that he was not selected for promotion to E-8, the orders were changed to accurately reflect retirement in the grade of E-7. 2. The Board found sufficient evidence to grant partial relief for a portion of the applicant’s claim pertaining to his request that he be paid for 98 days of unused leave he had accrued at the time he was retired – specifically, the Board determined the applicant was entitled to receive payment for 47.5 days of accrued leave. a. The Board found that, to the extent there were irregularities in the applicant’s out- processing from the Army, these resulted from the applicant’s refusal to sign or return the required paperwork. Beyond not being paid out for his unpaid leave at the time of separation of 11 February 2011, the applicant did not allege any substantive errors beyond being prevented from using or being paid out his leave resulting from these alleged irregularities and the Board did not find any. b. The Board found the applicant was not entitled to 52 (or any) days of Post Deployment Mobilization Respite Absence (PDMRA) at the time of service separation. The applicant’s mobilization to the Netherlands did not qualify for PDRMA because he did not meet the requirement of a minimum 50 percent of the duration of the order spent with “boots on the ground” in Iraq, Afghanistan, or Kuwait. Further, the eight days of unused PDMRA from the applicant’s prior mobilization had not been expended prior to his release from that period of active duty and the beginning of the follow-on active duty order and were void. c. The Board found that the applicant’s financial records indicate he had an unpaid accrued leave balance of 47.5 days when separated to the TDRL on 11 February 2014. Based on the leave and earning statements and correspondence from the Defense Finance and Accounting Services (DFAS), the Board determined the leave amount of 47.5 days was the accurate amount of unpaid leave owed the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined there is sufficient evidence to grant partial relief and amend the ABCMR’s decision in Docket Number AR20140003872 on 16 December 2014. 1. As a result, the Board 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 the applicant’s request that his retirement grade be corrected to master sergeant (MSG)/E-8. 2. The Board further determined the evidence presented is sufficient to warrant a portion of the requested relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by having DFAS pay the applicant the 47.5 days of accrued leave on the basis of the basic pay to which he was entitled on the date of discharge. 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, U.S.C., 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. Title 10, U.S.C. section 1372 provides that, unless entitled to a higher retired grade under some other provision of law, any member retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: (1) The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired; (2) The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired; (3) The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; (4) The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. 3. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), 30 April 2010/Rapid Action Revision 27 December 2011, paragraph 1-20, states that Soldiers who are on a promotion list at the time of separation for disability will be promoted to the designated grade effective the Soldier's separation date. Paragraph 4-6 states the Department of the Army Promotions Branch will announce the results of the section boards by command memorandum. They will publish a list of names of Soldiers considered and Soldiers selected. Soldiers who are recommended for promotion will be assigned sequence numbers for promotion to SFC, MSG, and SGM. Paragraph 4-7 states that HRC will publish orders announcing promotions to SFC, MSG, and SGM. Paragraph 6-9 states that individual mobilization augmentee (IMA) promotion to MSG and SGM will be promoted by sequence number. 4. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) 15 August 2005, paragraph 2-6, states that Reserve Soldiers may request voluntary assignment to a TPU or IMA position up to one grade higher than their current grade. 5. Army Regulation 600-8-10 (Leave and Passes), 15 February 2006, paragraph 2-4b, states that payment of accrued leave earned by a soldier of a Reserve component, retired Reserve, or retired member of the Regular Army while serving on active duty in support of a contingency operation is paid to the Soldier per Title 37, United States Code, section 501b. By law, payment of accrued leave is limited to 60 days one time during a military career. Payment is made in accordance with Department of Defense Financial Management Regulation (DOD FMR) 7000.14-R. Paragraph 3-2(f) states that Soldiers will be given a minimum of 5 working days to out-process unless it is locally determined that Soldiers can out-process quicker. 6. Title 37, U.S.C. section 501 states, in pertinent part, that service members who have accrued regular leave to their credit at the time of their discharge are entitled to be paid for such leave on the basis of the basic pay to which he was entitled on the date of discharge. The number of days of leave for which payment is made may not exceed 60 days. 7. The Department of the Army Personnel Policy Guidance for Overseas Contingency Operations (PPG), paragraph 8-10, states that Post Deployment Mobilization Respite Absence (PDMRA) is intended to be used as a period of "administrative time-off/pass" to reintegrate with family after an arduous deployment or prolonged family separation. If the PDMRA is not used, there is no option for cashing in unused PDMRA days for pay at separation or release from active duty.