IN THE CASE OF: BOARD DATE: 13 February 2020 DOCKET NUMBER: AR20180009453 APPLICANT REQUESTS: Correction of his record to show: * he was paid allowances for 28.5 days of accrued leave * payment of clothing allowance * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 206-0130, dated 25 July 2015 * Orders Number 265-0117, dated 22 September 2015 * Orders Number 273-0116, dated 30 September 2015 * DA Form 31 (Request and Authority for Leave), dated 28 August 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 December 2015 * Leave and Earnings Statement (LES), dated 31 August, 30 November, and 31 December 2015 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 (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. The applicant states he was involuntarily separated. As an involuntarily separated Soldier regulations state the Soldier cannot be forced to sell or forfeit leave days. He lost 28.5 days of leave. He requested terminal leave but was denied. Due to the involuntary separation and his orders being amended (in total he had 96 leave days). The involuntary separation totally disregarded the patient planning of processing out of the Army. Military Personnel Message (MILPER) Number 16-363 states a Soldier cannot be forced to forfeit leave days. He should have been extended or given terminal leave (paid leave with basic allowance for housing with dependents). Because of this he and his family lost one month of pay. As for his clothing allowance, the system did not rectify that he was extended. 3. A review of the applicant’s official records show the following on: a. On 3 November 2005, having had prior enlisted service in the Regular Army (RA), the applicant enlisted in the RA. b. On 8 October 2008, the applicant reenlisted for a period of 6 years in the RA. c. On 30 June 2014, the applicant reenlisted in the RA for a period of 2 years. He was assigned to E Forward Support Company, 115th Brigade Support Battalion, 1st Cavalry Division, Fort Hood, TX. d. On 25 July 2015, Orders Number 206-0130, issued by Headquarters, 3rd Corps and Fort Hood, reassigned the applicant to the transition point for separation processing. His date of discharge was 1 October 2015. e. On 22 September 2015, Orders Number 265-0117, issued by Headquarters, 3rd Corps and Fort Hood, amended Orders Number 206-0130 insomuch as changing his assignment from the U.S. Army Reserve (USAR) Control Group (Reinforcement) to Headquarters and Headquarters Company, 724th Military Police Battalion, Fort Lauderdale, FL. f. On 30 September 2015, Orders Number 273-0116, issued by Headquarters, 3rd Corps and Fort Hood, reassigned the applicant to the transition point for separation processing. This order changed his date of discharge to 1 December 2015. Item e of this order specifies the applicant must be completely cleared from the installation prior to processing his DD Form 214 at the transition center. g. On 30 September 2015, Orders Number 273-0118, issued by Headquarters, 3rd Corps and Fort Hood, revoked Orders Number 206-0130. h. On 1 December 2015, the applicant was honorably discharged from active duty by reason of insufficient retainability (economic reasons) and transferred to his USAR unit. * item 25 (Separation Authority) shows Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 16-7 * item 26 (Separation Code) shows JBM 4. The applicant provides: a. DA Form 31 showing the applicant requested 23 days of ordinary leave from 4 – 27 September 2015, and the approval authority denied the request. The accompanying coversheet, shows the applicant submitted the request on 27 August 2015, and the approval authority on 31 August 2015 noted the applicant needed to clear. b. August 2015 LES showing the applicant had a current balance of 86 leave days with 28.5 use or lose days. This LES also shows 60 days of leave was paid. c. November 2015 LES showing he lost 28.5 days of leave. Additionally, it shows a clothing allowance of $468.00 being paid to the applicant. d. December 2015 LES showing a zero leave balance and a clothing allowance payment of $39.00. It also shows “hold pay” beginning on 1 December 2015. 5. MILPER Message Number 15-397 (Enlisted Involuntary Early Separation) states Soldiers separated under this policy will be administered under the provisions of AR 635-200, chapter 16-7. The reason for separation to be entered on the DD Form 214 is “insufficient retainalbility”, and the separation program designator code will be “JBM” for service initiated discharge. Soldiers with an adjusted Expiration Term of Service (ETS) cannot be forced to sell back unused leave. Depending on leave accrued and a Soldier’s election to take transition leave, commanders have the flexibility to adjust the Soldier’s ETS date by one to three months, but never beyond the Soldier’s contractual ETS date. 6. AR 600-8-10 (Leaves and Passes) prescribes policies and procedures for military personnel absences, to include military leave. Payment of accrued leave is made per Title 37 USC, section 501 (Payments for Unused Accrued Leave) states, payment of accrued leave is limited to 60 days one time during a military career. 7. Department of Defense Financial Management Regulation (DODFMR) 7000.14-R, Volume 7a, section 290202 (Cash Clothing Replacement Allowance) states enlisted members receive the cash clothing replacement allowance, upon the anniversary month, each successive year following the provision of an initial clothing allowance. Cash clothing replacement allowances are for replacement of required uniform items based on a normal wear rate. Standard cash clothing replacement allowance is $474.08. 8. The Defense Finance and Accounting (DFAS) website states during the member’s final month of active duty, the member will receive normal mid-month pay with the final half going into a “Hold” account status. The “Hold” status is to ensure the member does not owe the Government money and vice versa (unpaid leave, allowances, etc.). 9. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, and the facts above, the Board found that partial relief is warranted. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not required to serve the interest of equity and justice in this case. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 authorized leave for the period of 4 – 27 September 2015 (28.5 days) and paying him pay and allowances for that period. b. Paying him full clothing allowance to his separation date of 1 December 2015. 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 a personal appearance before the Board. 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. ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. MILPER Message Number 15-397 (Enlisted Involuntary Early Separation) states Soldiers separated under this policy will be administered under the provisions of AR 635-200, chapter 16-7. The reason for separation to be entered on the DD Form 214 is “insufficient retainalbility”, and the separation program designator code will be “JBM” for service initiated discharge. Soldiers with an adjusted Expiration Term of Service (ETS) cannot be forced to sell back unused leave. Depending on leave accrued and a Soldier’s election to take transition leave, commander’s have the flexibility to adjust the Soldier’s ETS date by one to three months, but never beyond the Soldier’s contractual ETS date. 3. AR 600-8-10 (Leaves and Passes) prescribes policies and procedures for military personnel absences, to include military leave. Payment of accrued leave is made per Title 37 USC, section 501 (Payments for Unused Accrued Leave) states, payment of accrued leave is limited to 60 days one time during a military career. 4. DODFMR 7000.14-R, Volume 7a, section 290202 (Cash Clothing Replacement Allowance) states enlisted members receive the cash clothing replacement allowance, upon the anniversary month, each successive year following the provision of an initial clothing allowance. Cash clothing replacement allowances are for replacement of required uniform items based on a normal wear rate. Standard cash clothing replacement allowance is $474.08. 5. The DFAS website states during the members final month of active duty, the member will receive normal mid-month pay with the final half going into a “Hold” account status. The “Hold” status is to ensure the member does not owe the Government money and vice versa (unpaid leave, allowances, etc.). 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009453 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1