MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2002082997

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, an exactly worded addendum detailing the specifics of all appropriate back pay and allowances approved by the Board in its 26 June 2001 proceedings (AR2000044795).

APPLICANT STATES: In effect, that the Board’s recommendation failed to address his entitlement to back Special Duty Assignment Pay (SDAP); his overall leave entitlement to include the 30 days of leave he sold during early February 1999; readjustment pay; a waiver of Serviceman’s Group Life Insurance (SGLI) premium payments not offered by the Defense Finance and Accounting Service (DFAS). The applicant claims that the DFAS disbursing voucher is improper because it contains no certifying officer’s signature and does not include a voucher number.

The applicant also states that the ordinary leave he was charged during his reinstatement processing be voided because it was necessary for him to return to his home in Virginia from Fort Jackson, South Carolina to ship his household goods before moving on to his permanent assignment at Fort Stewart, Goergia. In addition, he claims that the Stand-By Advisory Board (STAB) process that he underwent for promotion reconsideration was prejudiced because he was categorized as a retiree. The applicant provides his full argument on the issues he presents in the enclosed 15 page self-authored statement and the attached 15 exhibits.

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

The Proceedings of the Board’s 26 June 2001 review of the case are incorporated herein by reference as if wholly set forth. In these Proceedings (AR2000044795), the Board recommended that the applicant’s 13 February 1999 honorable discharge from the Army be declared null and void, and that he be reinstated on active duty in pay grade E-7 without any loss of creditable service and with restoration of all rights and privileges, including all appropriate back pay and allowances.

On 10 August 2001, the Chief, Retention Management Division, Army Personnel Command (PERSCOM), published a memorandum pertaining to the applicant, Subject: Restoration to Active Duty. This document provided guidance on the implementation of the applicant’s restoration to active duty. The applicant was required to call either the Baltimore Military Entrance Processing Station (MEPS) or the Philadelphia MEPS to schedule his return to duty processing.

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The 10 August 2001 PERSCOM memorandum also directed the applicant to report to the 120^th Adjutant General Battalion Reception Station, Fort Jackson, South Carolina, for inprocessing. Finally, the applicant was informed that upon the completion of his processing at Fort Jackson, he would proceed on assignment instructions to Fort Stewart, Georgia, with a report date of
20 November 2001, an earlier report date was authorized. On 10 September 2001, the applicant reenlisted for 3 years at the Fort Dix MEPS, Fort Dix,
New Jersey.

On 9 November 2001, the Defense Finance and Accounting Service (DFAS), Denver Center, Denver Colorado, published a letter notifying the applicant of the amount of money due him as a result of the correction of his military records. It stated that the computation of entitlements was based on his Master Military Pay Account (MMPA) at the time of his separation.

The DFAS memorandum further indicated that compensation not specifically directed by the Board could not be paid. The applicant was also advised that
60 days of leave had been restored to his MMPA. It further stated that the accumulation of leave set forth in the law was 60 days and due to this statutory limitation any leave in excess of 60 days is immediately lost and may not be credited in the next fiscal year.

The DFAS leave computation for the reinstated period showed that the applicant lost 38.5 days of leave. It further indicated that although leave could not be credited to his account, he could apply for a waiver. DFAS also informed the applicant that the 30 days of leave that he was paid for at the time of his separation on 13 February 1997, was considered an erroneous payment upon his reinstatement. He was also advised that favorable waiver consideration could be given for the leave lost not to exceed 30 days collected upon his reinstatement. He was also informed that he could apply for the waiver by completing a waiver/remission of indebtedness application (DD Form 2789) that was enclosed for his use.

The DFAS settlement letter also informed the applicant that he could submit a claim for medical and dental expenses incurred during the period of restoration and he was advised of the proper processing procedures. In addition, he was notified that his claim for commissary, exchange, MWR, and education privileges was being denied. The reason cited for this denial was that the monetary savings he may have enjoyed had he been allowed to use these facilities could not be definitely ascertained. Further, the value of these fringe benefits are a matter of speculation and can only be estimated.

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In connection with the processing of this case, an advisory opinion was obtained from the DFAS. It states that in regard to the applicant’s leave balance, the accumulation of leave set forth in Title 10 of the Untied States Code, section 701B (10 USC 701B), does not allow a member to accrue over 60 days of leave. Due to this statutory limitation, all days in excess of 60 days are lost. On or about 11 October 2001, 60 days of leave were posted to the applicant’s MMPA by DFAS.

The DFAS opinion further states that the computation of pay and allowances for the reinstated period from 14 February 1999 through 26 June 2001, included a collection of $2,316.60 for 30 days lump sum leave the applicant was paid for on 13 February 1999, as this pay was considered an erroneous payment upon reinstatement. The opinion further confirms that the applicant was informed on two separate occasions that he could apply for a waiver of this collection.

In regard to the applicant’s request for SDAP, the DFAS opinion states that the applicant was reassigned from recruiting duty due to his failure to maintain acceptable standards. In accordance with the Department of Defense Financial Management Regulation (DODFMR), SDAP will be stopped on the date the proper authority determines a member receiving the pay fails to maintain the minimum level of qualification required for satisfactory performance. Further, the applicant’s entitlement to SDAP stopped over a year before he was separated from the Army. DFAS recommends this request be denied.

Pertaining to the applicant’s request for a waiver of SGLI premiums, DFAS opines that based on the applicant’s record being corrected to show he remained on active duty from 14 February 1999, given his MMPA from 1999 indicated that he had elected SGLI coverage, he became liable for the premiums at the maximum rate for the reinstated period. Under the provisions of 10 USC 785, any decision concerning whether collection of premiums should be waived under the circumstances of this case would have to be addressed to the Department of Veterans Affairs (VA).

On 14 May 2003, the applicant was provided a copy of the DFAS advisory opinion in order to have the opportunity to rebut its contents. To date, he has failed to respond.

10 USC 701 provides the legal authority for the entitlement and accumulation of leave. Paragraph (b) states, in pertinent part, that a member may not accumulate more than 60 days' leave.

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The DODFMR provides the statutory provisions for entitlements, deductions, and collections, and establishes DOD policy for the payment of military personnel. Chapter 8 provides the policy for special pay. Paragraph 080101B provides guidance on SDAP. It states that an enlisted member may qualify for SDAP when the member performs duties designated by the Secretary concerned.

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

1. The Board carefully considered the applicant’s request that an exactly worded addendum to the Board’s original decisional document that specifically details the back pay and allowances he is due be published. However, it finds no evidentiary basis to support this requested relief.

2. The evidence of record shows that the applicant was reinstated to active duty as recommended by the Board, and that he was provided all back pay and allowances due as determined by the proper Army finance authority (DFAS).

3. The Board notes the applicant’s contention that he was unjustly charged ordinary leave to attend to the shipment of his household goods during his reinstatement processing. However, the applicant fails to provide evidence showing that he attempted to or was denied an administrative alternative to taking ordinary leave to attend to this shipment of his personal goods during his reinstatement processing. Further, the record shows the applicant requested and was granted ordinary leave for this purpose. Thus, the Board finds no error or injustice related to this issue.

4. The Board also considered the applicant’s claim that his promotion reconsideration to master sergeant (MSG) by the STAB was prejudiced by the fact he was categorized as a retiree. However, although the forwarding memorandum from the U.S. Army Total Army Personnel Command (PERSCOM) addressed him as “SFC Ret”, it does not automatically follow that he was categorized this way before the STAB that reviewed his record for promotion, or that it was used by the STAB as a discriminator. Promotion reconsideration is based on the criteria outlined in the original instructions to the promotion selection boards for which they are being reconsidered, the status of the individual is not a factor in the STAB’s deliberations.

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5. Lacking evidence to the contrary, the Board presumes that the STAB considered the applicant under the same criteria that was used by the Calendar Year 2000 and 2001 MSG promotion selection boards, as it was instructed to do. The Board finds no evidence to support the applicant’s allegation that the STAB process was prejudiced as a result of his being characterized as a retiree. Thus, it finds no evidentiary support for the applicant’s request to be reconsidered for promotion.

6. In the opinion of the Board, there was no error or injustice related to the applicant’s reinstatement processing or the DFAS interpretation of the pay and allowances he was due upon his reinstatement. Thus, it finds no reason to provide the addendum to its original recommendation as requested by the applicant.

7. As indicated in the DFAS advisory opinion, the applicant was advised that he could apply for a waiver of the $2,316.60 leave collection and was provided the forms necessary to accomplish this action; however, he has failed to pursue this remedy. Further, there is no indication that he has requested a waiver of the SGLI premium payments collected through the DVA. Thus, the Board finds it would not be appropriate to address these issues until the applicant has exhausted all his administrative remedies.

8. The record also shows that the applicant ceased performing recruiting duties more than a year prior to his separation from the Army. Further, the Board’s recommendation for reinstatement was based on the determination that facts and circumstances of the case did not support his ultimate separation. No judgment was made on the validity of his removal from recruiting duty. Given the receipt of SDAP is contingent on a member performing the special duty for which it is authorized, the Board finds it would not be appropriate to provide him SDAP for the reinstated period of service.

9. Finally, the Board finds that its original recommendation in this case has been fully implemented as intended and that further specificity is not required in this case. The Board finds no errors or injustice related to the applicant’s reinstatement processing, the personnel management actions taken in concert with this reinstatement, or in the authorization of back pay and allowances from the DFAS.

10. 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

__KN___ __RO__ __PM___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records


        

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INDEX

CASE ID	AR2002082997
SUFFIX
RECON
DATE BOARDED	2003/06/
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.