IN THE CASE OF: BOARD DATE: 14 February 2022 DOCKET NUMBER: AR20210014007 APPLICANT REQUESTS: reimbursement for unused leave accrued between 1 February 2006 and 30 June 2013. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * AGO Form 74-3 (Transmittal Letter), dated 11 September 2020 * DA Form 4187 (Personnel Action), dated 4 September 2020 * Orders Number 005-112, dated 15 January 2007 * Orders Number 333-042, dated 29 November 2006 * Orders Number 273-381, dated 30 September 2005 * Orders Number 333-054, dated 29 November 2006 * Orders Number 272-007, dated 29 September 2007 * Orders Number 232-078, dated 19 August 2008 * Orders Number 317-069, dated 12 November 2008 * Orders Number 274-122, dated 30 September 2008 * Orders Number 317-106, dated 12 November 2008 * Orders Number 002-066, dated 16 January 2009 * Orders Number 322-525, dated 17 November 2008 * Orders Number 007-008, dated 7 January 2009 * Orders Number 028-034, dated 28 January 2009 * Orders Number 007-065, dated 7 January 2009 * Orders Number 044-082, dated 23 February 2009 * Orders Number 142-046, dated 22 May 2009 * Orders Number 062-007, dated 3 March 2009 * Orders Number 148-025, dated 28 May 2009 * Orders Number 210-002, dated 29 July 2009 * Orders Number 149-004, dated 29 May 2009 * Orders Number 211-031, dated 10 July 2009 * Orders Number 222-013, dated 10 August 2009 * Orders Number 240-032, dated 28 August 2009 * Orders Number 243-041, dated 31 August 2009 * Orders Number 240-012, dated 28 August 2009 * Orders Number 279-048, dated 6 October 2009 * Orders Number 274-089, dated 1 October 2009 * Orders Number 225-016, dated 13 August 2010 * Orders Number 260-059, dated 12 September 2010 * Orders Number 278-106, dated 5 October 2010 * Orders Number 356-048, dated 12 December 2010 * Orders Number 356-050, dated 22 December 2010 * Orders Number 356-054, dated 22 December 2010 * Orders Number 045-026, dated 14 February 2011 * Orders Number 139-038, dated 18 May 2012 * Orders Number 275-130, dated 1 October 2012 * Orders Number 313-049, dated 8 November 2012 * Orders Number 162-202, dated 11 June 2013 * Orders Number 036-072, dated 5 February 2013 * Orders Number 339-054, dated 4 December 2012 * Orders Number 307-006, dated 2 November 2012 * Email communication * Defense Joint Military Pay System (DJMS) Update FACTS: 1. The applicant states in pertinent part that his request to sell his unused leave was denied by the Defense Finance Accounting Service (DFAS) due to the dates of accrual being beyond 5 years. He contests that he was not afforded the opportunity to either use or sell these leave days prior to his retirement. On or about 15 August 2020, it was noted that he had accrued 32 days of leave. On 4 September 2020, he submitted a request to sell these days prior to his pending retirement on 29 September 2020. His submitted packet was received by the Military Pay Office on 11 September 2020. 2. A review of the applicant's available personnel records (General Officer records are restricted and not viewable) reflects the following: a. On or about 22 November 1985, the applicant entered the U.S. Army. b. On or about 9 May 1987, the applicant was appointed a Reserve commission. c. On or about 29 September 2020, the applicant was released from the Army National Guard (ARNG) for retirement. 3. The applicant provides the following a: a. AGO Form 74-3, dated 11 September 2020, reflective of the submission of pay related documents, to include the applicant's submitted request to sell unused leave, by the West Virginia (WV) ARNG, Human Resources Noncommissioned Officer to the Finance Office, Buckhannon, WV. b. DA Form 4187, dated 4 September 2020, reflective of the applicant's submitted request to sell 32.5 days of accrued leave. c. Orders issued between 30 September 2005 and 11 June 2013, reflective of the applicant being ordered to active duty for a variety of fragmented and overlapping periods of active duty (Active Duty for Special Work (ADSW) and Temporary Duty (TDY)) during the following periods: 1 October 2005 – 30 September 2007; 1 December 2006 – 30 September 2007; 1 October 2007 – 30 September 2008; 1 October 2008 – 30 September 2009; 1 October 2009 – 30 September 2010; 23 January 2011 – 28 February 2011; 1 March 2011 for 365 days; 5 June 2012 – 30 September 2012; 17 November 2012 – 30 June 2013 etc. d. Email communication reflective of communication concerning the applicant's request to sell his unused leave. On 4 December 2020, the applicant's executive assistant advised that the applicant had not received payment of his unused leave. On 14 December 2020, DFAS advised that the applicant's request to sell leave was rejected since the leave was accrued over 5 years ago and therefore required to request relief through the Army Board for Correction of Military Records (ABCMR). e. DJMS Update reflective of the applicant's submitted request for leave adjustment being rejected on or about 23 November 2020 due to exceeding the 5-year time limit. 4. On 6 December 2021, the National Guard Bureau, Chief, Special Actions Branch provided an advisory opinion recommending approval of the applicant's request for payment related to unused accrued leave citing that they were not aware of the fact that the applicant was denied the opportunity to sell his leave back at the time of retirement. On or around, 15 August 2020, the applicant noticed that he had a leave balance on his Leave and Earnings Statement, so he requested to sell it since he would not have the ability to utilize it as a traditional Guardsmen with a pending retirement of 29 September 2020. The request to sell back the leave was approved by the command, but when submitted to DFAS it was rejected due to the accrued leave being over 5 years old. The guidance from DFAS was to submit an ABCMR in order to obtain the ability to request payment of the leave and gain approval of such payment. 5. On 10 December 2021, the applicant was provided with a copy of the advisory opinion and afforded 30 days to provide comments. As of 9 February 2022, the applicant had not responded. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's contentions, the military record, regulatory guidance and advisory opinion. The Board concurred with the National Guard Bureau advisory opinion finding sufficient evidence of an error or injustice that warrant relief. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for 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 he was authorized to sell 32.5 days of leave from the periods of 1 February 2006 through 30 June 2013, the amount of which to be determined by the Defense Finance and Accounting Services. 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. United States Army Reserve (USAR) Pamphlet 37-1 (Finance Guide) paragraph 5-4 (Disposition of Unused Leave) states that when a Soldier is released from active duty, they may elect payment for unused leave or request to carry all or a portion of the leave forward to their next active duty period of 30 or more days. Soldiers with unused leave balances from mobilization or Contingency Operations (CO) - ADOS orders will normally use the leave as transitional leave prior to release from active duty. Soldiers accruing leave on Active Duty for Training (ADT) or ADOS-Reserve Component orders are not authorized transitional leave. 2. Army Regulation (AR) 600-8-10 (Leave and Passes) provides that commanders should encourage Reserve Component (RC) Soldiers to take accrued leave prior to the end of an active duty tour. However, an RC Soldier who accumulates leave during a period of active service may carry over any leave so accumulated to the Soldier's next period of active service, subject to accumulation limits of Title 10, United States Code (USC), section 701, without regard to separation or release from active service if the separation or release is under honorable conditions. Payment for accrued leave earned by a RC Soldier, retired Reserve member, or retired Regular Army member while serving on duty in support of a contingency operation is made per Title 37, USC, Section 501. 3. Title 37, USC, Section 501 (Payments for Unused Accrued Leave) provides that a member of the Army, who has accrued leave to his credit at the time of his 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. 4. The Barring Act, Title 31, USC, section 3702 states that the Secretary of Defense shall settle claims involving uniformed service members' pay, allowances, travel, transportation, payments for unused accrued leave, retired pay, and survivor benefits. A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues. A claim that is not received in the time required under this subsection shall be returned with a copy of this subsection, and no further communication is required. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014007 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1