ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20190003696 APPLICANT REQUESTS: Correction of his record to show: * cancellation of leave from 7 July 2012 – 20 August 2012 * update accrual and Expiration Term of Service (ETS) leave balance * cancellation/remission of his debt and tax garnishment associated with the negative leave balance * refund of all withheld taxes APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Leave and Earnings Statements (LES), dated 31 August and 30 September 2012 * Enlisted Record Briefs (ERB), dated 15 February and 27 March 2012 * Memorandum, Subject: Early Return of Dependents to Continental U.S. (CONUS), dated 30 March 2012 * Memorandum, Subject: Travel Authorization for Return of Dependents to CONUS (Early Return) for the applicant, dated 21 May 2012 * DA Forms 31 (Request and Authority for Leave), dated 7 July 2012 – 20 August 2012 and 12 October 2012 – 3 December 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 3 December 2012 * Defense Finance and Accounting Service (DFAS)/Department of Treasury responses * Department of Treasury collection notice, dated 8 August 2013 * Memorandum, Subject: Erroneous Leave, dated 20 April 2014 * Congressional support request 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: * during his service in the Army, he originally had an ETS date of 20 August 2012 and he submitted a DA Form 31 with that ETS date * he submitted a transitional DA Form 31 on 3 February 2012 and a few weeks later the transition center noticed an error on his ETS date made through the military entrance processing station and his correct ETS was 3 December 2012 * he did not take leave from 7 July – 20 August 2012 * he submitted a corrected DA Form 31 to reflect the correct ETS date * he was forced to send his family back to the States unaccompanied while he completed the remaining service in Korea * the personnel office processed the initial DA Form 31 which caused a negative leave balance by the time he took his corrected transitional leave * months after his ETS, he received a letter from the Department of Treasury stating he had a debt, and despite numerous calls, emails and attempts to prove his case, his file was sent to a collection agency and then to the Internal Revenue Service who garnished his taxes 3. A review of the applicant’s official records show the following on: * 21 August 2008 – having had prior enlisted service in the Regular Army (RA), the applicant enlisted in the RA for a period of 4 years and 15 weeks (ETS on or about 3 December 2012) * the applicant’s ERB shows he served in Korea from on or about 3 November 2009 to on or about 3 December 2012 * 20 June 2012 – Orders Number 172-0002, issued by the Installation Management Command – Pacific, reassigned the applicant to the U.S. Army transition point for transition processing and discharged him from the Army effective 3 December 2012 * 3 December 2012 – the applicant was honorably discharged from active duty by reason of completion of required active service 4. The applicant provides: * LES’s showing in: * August 2012; leave balance of 45 days and an ETS balance of 53 days * September 2012; leave balance of 47.5 days and an ETS balance of 53 days * each LES reflects his ETS date as 3 December 2012 (leave accrual adjustment is not required) * ERBs showing on: * 15 February 2012 – his ETS was 20 August 2012 * 27 March 2012 – corrected ETS was now 3 December 2012 * Memorandum, Subject: Early Return of Dependents to CONUS, showing his transitional leave was scheduled to begin on 7 July 2012 understanding his ETS was on 20 August 2012, and his corrected ETS was now 3 December 2012 * Memorandum, Subject: Travel Authorization for Return of Dependents to CONUS (Early Return) for the applicant, showing early return of his dependents was approved * DA Forms 31 dated and showing: * 3 February 2012 – transition leave 7 July – 20 August 2012 with a control number assigned (12/WDCSAA/0217) and signed by the approving authority * 25 May 2012 – transition leave 12 October – 3 December 2012 with a control number assigned (12/WDCSAA/0373) and signed by the approving authority * DFAS/Department of Treasury documents showing the applicant’s debt was valid due to accruing a negative leave balance of 45 days and 4 days of non-accrued leave which amounted to a debt of $7,168.06 and a collection of all military pay and allowances * Department of Treasury collection notice showing the applicant had a total debt amount of $9,655.85 * Memorandum, Subject: Erroneous Leave authored by the immediate commander (2014, after the applicant’s ETS) for the leave with control number 12/WDCSAA/0217 stating in pertinent part, it appears the applicant did not take the leave granted and was present for duty * Congressional support request submitted to the office of the Honorable requesting assistance in resolving his negative leave balance and tax garnishment 5. Army Regulation (AR) 600-8-10 (Leaves and Passes) states the leave and pass program is designed to allow Soldiers to use their authorized leave to allow use of leave prior to separation. Soldiers on active duty earn 30 days of leave a year with pay and allowances at a rate of 2.5 days per month. Transition leave is a chargeable leave granted together with transition from the service. Leave will not be granted if it exceeds that accrued or to be accrued between the date of approval and date of transition. 6. AR 600-4 (Remission or Cancellation of Indebtedness) states indebtedness under Title 10 USC, section 4837 may be remitted or cancelled arising from debts incurred while serving on active duty, debts acknowledged as valid, and debts for which an appeal has been denied. 7. Department of Defense Financial Management Regulation (DODFMR) Volume 7A, chapter 1 states advance leave becomes excess leave and requires collection of pay and allowances when the member is relieved from active duty. 8. Title 37 USC, section 501 states, a member of the Army who has accrued leave to his credit at the time of discharge, is entitled to be paid in cash or by a check on the Treasurer of the United States for such leave on the basis of the basic pay to which he was entitled on the date of discharge. 9. Title 10 USC, section 1552 states, the Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is warranted. 2. The Board agreed that the evidence shows that, due to an error in the applicant's ETS date, he twice submitted a request for transition leave. Unfortunately, his initial request was not cancelled and he was erroneously charged for two periods of transition leave, which resulted in a negative leave balance and a debt. 3. The Board concluded it would be equitable to correct the record to show his request for transition leave from 7 July – 20 August 2012 (control number 12/WDCSAA/0217) was cancelled. As a result of the cancellation of this leave, his financial records should be reviewed to determine what, if any, remaining debt he may have subsequent to this correction. 4. The Board noted that it has no authority to address withheld tax refunds. The applicant may address this matter with the Internal Revenue Service after the execution of any recommended relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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: * showing his request for transition leave from 7 July – 20 August 2012 (control number 12/WDCSAA/0217) was cancelled * as a result of this correction, reviewing his pay records to determine what, if any, debt he may have remaining 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 600-8-10 (Leaves and Passes) states the leave and pass program is designed to allow Soldiers to use their authorized leave to allow use of leave prior to separation. Soldiers on active duty earn 30 days of leave a year with pay and allowances at a rate of 2.5 days per month. Transition leave is a chargeable leave granted together with transition from the service. Leave will not be granted if it exceeds that accrued or to be accrued between the date of approval and date of transition. 3. AR 600-4 (Remission or Cancellation of Indebtedness) states indebtedness under Title 10 USC, section 4837 may be remitted or cancelled arising from debts incurred while serving on active duty, debts acknowledged as valid, and debts for which an appeal has been denied. 4. DODFMR, Volume 7A, chapter 1 states advance leave becomes excess leave and requires collection of pay and allowances when the member is relieved from active duty. 5. Title 37 USC, section 501 states, a member of the Army who has accrued leave to his credit at the time of discharge, is entitled to be paid in cash or by a check on the Treasurer of the United States for such leave on the basis of the basic pay to which he was entitled on the date of discharge. 6. Title 10 USC, section 1552 states, the Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190003696 5 1