ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20190003913 APPLICANT REQUESTS: correction of leave adjustment and 21 days of back pay for leave that she was not able to take prior to retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Birth Certificates * Adoption Certificate * Citizenship document * Email Communication with Personnel and Finance Office * Email Communication with the Defense Finance and Accounting Services (DFAS) center * Department of Defense response letter to Congressional Inquiry * Leave and Earnings Statement FACTS: 1. The applicant states that she began adoption proceedings in November of 2015. The President signed into law the 2017 National Defense Authorization Act (NDAA) on 23 December 2016. Contained within this document was the authorization of six (6) weeks of paternal leave for adoption. She contests that at this time, she was serving on active duty and her spouse was not. She further provides the following chronological account of the events proceeding her inquiry: * on 8 August 2017 - their adoption was finalized and she took personal leave as well as 21 days of adoption leave; the Department of Defense (DOD) had yet to implement the six (6) weeks of leave provisioned under the announced 23 December 2016 NDAA * in February of 2018 - she sought the assistance of her state Senator regarding the implementation of this guidance * on 1 March 2018 - she received a response stating that the DOD was in the process of implementing said directive and that upon implementation this guidance would be retroactive to 23 December 2016 * on 23 March 2018 - the guidance was finally implemented authorizing six (6) weeks of adoption leave * in June of 2018, all services, with the exception of the Army, implemented 6 weeks of adoption leave * in July of 2018 – she inquired about adjustment of her leave under the DFAS message 18-037 which authorized credit to service members for adoption leave; denied until Army implementation * on 21 July 2018 – she retired from the Army * on 22 January 2019 – the Army implemented their policy pertaining to the passage of the NDAA of 23 December 2016 applying only to Soldiers currently serving on active duty 2. The applicant provides the following: * Birth Certificates – issued on 11 August 2017 certifying the birth of her child on 2 November 2009 and further registering her as the mother * Adoption Certificate – issued on 10 August 2017 reflective of her legal parental rights * Citizenship documents issued on 19 October 2017 - reflective of the applicant’s daughter obtaining her citizenship on 25 August 2017 * Email Communication with Personnel and Finance Office – reflective of her inquiry as to how she can obtain retroactive relief; further advised that the guidance previously provided had been rescinded * Email Communication with the Defense Finance and Accounting Services (DFAS) center – reflective of communication regarding the implementation of paternal leave in connection with adoption; advised to seek assistance relief from the ABCMR * Department of Defense response letter to Congressional Inquiry dated 1 March 2018 – reflective of the Chief, Compensation and Entitlements response wherein he states that they are currently working on an equitable policy that is amendable for all Service members and their intention to make this policy retroactive to 23 December 2016 when the law was signed * Leave and Earnings Statement dated 31 July 2018 – reflective of the applicant being charged for leave from 24 June through 31 July of 2018 and being paid for 6 days of unused leave at the time of her retirement 3. A review of the applicant’s available service records reflects the following on: * 18 September 1993 – she enlisted in the Army Reserve under the Delayed Entry Program (DEP) * 22 June 1994 – she entered active duty * 30 June 1996 (Order# 27-17) – she was released from active duty and reassigned to the Control Group (Reinforcement) * 27 May 2000 – she was commissioned as a 2LT and placed on active duty * 31 July 2018 (Order# 194-0002 / Order# 046-001) – she was released from active duty and placed on the Retired List effective 1 August 2018 4. Army Directive 2019-05 (Army Military Parental Leave), as referenced by the applicant, is dated 22 January 2019. It states the entitlements outlined in this directive are retroactive to 23 December 2016 and implementation of this policy would not negate or curtail any leave taken under the existing leave policy. Soldiers who received 10 days of non-chargeable parental leave (commonly known as paternity leave) or up to 21 days of non-chargeable adoption leave may be retroactively designated as primary or secondary caregivers (in accordance with designation guidance for primary and secondary caregivers in paragraphs 6 and 7 of this directive) and receive a total of 42 days or no more than 21 days, respectively, of non-chargeable leave (including any previously authorized leave) to be used within 18 months of the qualifying birth events or adoptions. 5. Paragraph 5 (Leave Corrections) states that Soldiers who are no longer serving a period of active service cannot request corrections to their leave balances based on the Military Parental Leave Program. They also cannot sell back unused leave resulting from retroactive primary and secondary caregiver leave. Any unused leave will be forfeited at separation from active service. 6. DoD_ 1327.06 (Leave and Liberty Policy and Procedures) in effect at the time states that a Service member who adopts a child in a qualifying adoption shall receive up to 21 days of non-chargeable leave of absence to be used in connection with the adoption. This absence shall be taken within 12 months following the adoption and may be authorized in conjunction with ordinary leave. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Secretary of the Army signed a directive on 22 January 2019 that specified that Soldiers who are no longer serving a period of active service cannot request corrections to their leave balances based on the Military Parental Leave Program. The Board concluded that, because the applicant retired in 2018, she is not entitled to correction of her record under the governing Army directive. The Board found no evidence of inequity or injustice, as the directive's restriction on eligibility for corrections applies to all Soldiers. 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. REFERENCES: 1. Army Directive 2019-05 (Army Military Parental Leave) as referenced by the applicant is dated 22 January 2019 states that the entitlements outlined in this directive are retroactive to 23 December 2016 and that implementation of this policy would not negate or curtail any leave taken under the existing leave policy. Soldiers who received 10 days of non-chargeable parental leave (commonly known as paternity leave) or up to 21 days of non-chargeable adoption leave may be retroactively designated as primary or secondary caregivers (in accordance with designation guidance for primary and secondary caregivers in paragraphs 6 and 7 of this directive) and receive a total of 42 days or no more than 21 days, respectively of non-chargeable leave (including any previously authorized leave) to be used within 18 months of the qualifying birth events or adoptions. 2. Paragraph 5 (Leave Corrections) states that Soldiers who are no longer serving a period of active service cannot request corrections to their leave balances based on the Maternity Parental Leave Program. They also cannot sell back unused leave resulting from retroactive primary and secondary caregiver leave. Any unused leave will be forfeited at separation from active service. 3. DoD Instruction 1327.06 (Leave and Liberty Policy and Procedures) states that a Service member who adopts a child in a qualifying adoption shall receive up to 21 days of non-chargeable leave of absence to be used in connection with the adoption. This absence shall be taken within 12 months following the adoption and may be authorized in conjunction with ordinary leave. //NOTHING FOLLOWS//