APPLICANT REQUESTS:  In effect, that his records be corrected to reflect that he enlisted in the Army in the pay grade of E-5 and that he receive all back pay and allowances.  In addition, he requests constructive service credit and appropriate pay for leave that he sold, leave that he lost, and permissive temporary duty (TDY) that he was denied.

APPLICANT STATES:  In effect, that at the time he enlisted in the Army, he was informed that his former Marine Corps military occupational specialty (MOS) could not be converted to an Army MOS, therefore, he would require training and would only be authorized to enlist in the pay grade of E-4.  Upon completion of his advanced individual training (AIT) he received orders awarding him a secondary MOS (SMOS) similar to the MOS held in the Marine Corps.  He goes on to state that if he could be awarded a SMOS in that specialty, he could have been allowed to enlist in the pay grade of E-5 in the same specialty.  He further states that during his career in both the Marine Corps and the Army, he unknowingly and unintentionally sold 111.5 days of leave.  At the time of his discharge from the Army, he sold 15 days of leave and lost 14 days of leave because he couldn’t take them.  Additionally, because he was forced to retire on 1 September 1993, he was denied his right to take 20 days of permissive TDY.  He contends that his retirement records should be adjusted to reflect constructive service credit for all leave and TDY he was unable to take and for the amount of leave in excess of the 60 days he was authorized to sell during an entire military career.  

EVIDENCE OF RECORD:  The applicant's military records show:

After serving 9 years, 2 months, and 26 days of total active service in the Marine Corps as a training and audiovisual operations specialist, the applicant was honorably discharged on 7 March 1987 in the pay grade of E-5.  His Marine Corps separation document (DD Form 214) does not indicate that any accrued leave was paid.

On 2 June 1987, he enlisted in the Regular Army for a period of 4 years, in the pay grade of E-4, for training as a unit supply specialist.  His enlistment contract contains an entry indicating that officials at the Total Army Personnel Command (PERSCOM) Force Management Branch indicated that the applicant’s Marine Corps MOS did not convert to an Army MOS and that the applicant was authorized to enlist in the pay grade of E-4.

The applicant attended training as a unit supply specialist and was awarded a primary MOS (PMOS) of 76Y.  In addition, he was awarded a SMOS of 41E (audio-visual equipment repairer). There is no indication in the available records to show the rationale for awarding the applicant the SMOS; however, his records do show that he was never assigned duties in that MOS.

The applicant was promoted to the pay grade of E-6 on 1 April 1990 and again reenlisted on 18 April 1991 for a period of 6 years.  He elected to cash in 45 days leave at that time.

On 17 August 1993, the PERSCOM approved the applicant’s request for separation under the Fiscal Year 1993 Voluntary Early Retirement Program (VERP).  However, the request was approved conditional on the applicant retiring on 1 September 1993.

The applicant was honorably released from active duty on 31 August 1993 under the provisions of Army Regulation    635-200, chapter 12 and the VERP.  He was transferred to the USAR Control Group (Retired) effective 1 September 1991.  He had served 15 years, 5 months, and 24 days of total active service.  He was paid for 15 days of accrued leave.

Army Regulation 630-5 prescribes the policies and procedures governing various types of authorized absences.  It states, in pertinent part, that the Congress has provided compensation for soldiers who were unable to use their leave because of military requirements, in that it authorizes the payment of no more than 60 days of accrued leave during a military career.  It further states that soldiers will not be required to use leave immediately prior to separation simply for the purpose of reducing leave balances.  On the other hand, use of the leave system as an extra money program defeats the intent of Congress to provide for health and welfare of soldiers.  It should not be used either as a method of compensation or as a career continuation incentive. It is specifically intended that large leave balances will not be accrued expressly for settlement upon release from active duty.  Additionally, soldiers are responsible for verifying their leave account and reporting discrepancies to their serving finance and accounting office.  Soldiers may not carry over more than 60 days of accrued leave in their leave account at the end of a fiscal year without an approved exception to policy.

Army Regulation 630-5 also states that permissive TDY is subject to approval by appropriate authorities and must be performed at no expense to the government.

The PERSCOM message number 93-164, dated 20 April 1993, announced the criteria for the fiscal year 1993 early retirement program (the first year the program was offered). It stated, in pertinent part, that soldiers with at least 15 years of active federal service (AFS) but less than 20 years of AFS, in selected pay grades and military occupational specialties, could apply for early retirement.  It also stated that individuals approved for separation under the Fiscal Year 1993 VERP must depart active duty no later than 31 August 1993.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s contention that he was unjustly denied the opportunity to enlist in the Regular Army in the pay grade of E-5 in the specialty he possessed in the Marine Corps, is without merit.  A determination was made by the Department at the time the applicant enlisted, that his former MOS was not compatible for conversion to a PMOS acceptable for enlistment in the Army.

2.  Inasmuch as enlistment in the Regular Army is a volitional act on the part of the enlistee, the applicant had the choice of declining the enlistment options offered to him at the time.  Additionally, although the Department subsequently awarded the applicant a similar SMOS, this in itself, did not imply that his Marine Corps MOS could be converted, but simply that he possessed skills in addition to those of his PMOS.  Accordingly, he was properly enlisted in the pay grade of E-4. 

3.  The applicant’s contention that he should be granted additional service credit for cashing in more leave than he was authorized to cash in, for leave that he lost, and for permissive TDY that he was unable to take, is without merit. The responsibility for managing leave accounts is an individual soldier’s responsibility (barring unforeseen mission requirements).  Although the applicant, by his own admission, received compensation for accrued leave in an amount almost double his authorization, it would not be appropriate to award him further compensation.  Additionally, to award compensation for accrued leave is contrary to the intent of the leave program and would not be appropriate in this case.

4.  The applicant’s contention that he should be given constructive service credit because he was denied the opportunity to take permissive TDY in conjunction with his retirement is without merit.  The applicant’s request for separation under the VERP was conditional upon his retiring on 1 September 1993.  The applicant accepted the conditions of the approval and in doing so gave up the opportunity to request permissive TDY.  Therefore, there is no basis to approve his request.

5.  Although, the applicant believes he should be compensated for accrued leave he lost or did not take, these were choices made by him, and in doing so, he risked the consequences.  Accordingly, it would not be appropriate for the Department to afford him compensation that is not afforded to others in similar circumstances.  

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		David R. Kinneer
		Executive Secretary