IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110005613 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of the separation program designator (SPD) code entered on his DD Form 214 (Certificate of Release or Discharge from Active Duty), or payment for or use of 30 days of accrued leave.

2.  The applicant states:

	a.  The Defense Finance and Accounting Service (DFAS) and U.S. Army Human Resources Command (USAHRC) informed him they could neither buy back nor transfer his 30 days of accrued leave upon his discharge from the Regular Army (RA) and transfer to the Reserve component, due to his assigned SPD code and their interpretation of the governing regulation.

	b.  He simply believes his record is in error because he was not paid for the leave he earned.

	c.  His DD Form 214 should be corrected to show the appropriate SPD code to allow payment for his 30 days of accrued leave.

	d.  On 30 June 2010, he was discharged from the RA to accept a Reserve commission on 1 July 2010 in accordance with guidance from the Chief of Chaplains at Fort Jackson (sic).

	e.  He was advised to take leave prior to his discharge but he was unable to do so within the 90-day span necessary to accept the commission because of his duty requirements as the rear detachment noncommissioned officer in charge.

	f.  His brigade S-1 informed him he would be able to sell his leave in hopes of using those funds to acquire housing at his new place of residence; however 70 days later, the DFAS Inspector General confirmed he could not sell his leave or transfer it to the Reserve component because of the SPD code assigned to him at the time of his discharge.

	g.  He is currently homeless and would like to get paid in order to obtain sufficient housing to bring his family back together under one residence again.

3.  The applicant provides:

* Army Review Boards Agency (ARBA) letter, dated 10 February 2011
* DFAS Case Management System extract (two pages), dated 17 March 2011
* DD Form 214 and DD Form 214C (Continuation Sheet)
* DD Form 2789 (Waiver/Remission of Indebtedness Application), dated
13 March 2011
* Letter from the U.S. Army Financial Management Command, Indianapolis, IN to ARBA, dated 23 March 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the RA on 13 March 1997 and he continued to serve on active duty through a series of reenlistments.  On 30 June 2010, he was honorably discharged from the RA after having completed 13 years, 3 months, and 18 days of creditable active service.

2.  The DD Form 214 he was issued on the date of his discharge shows in:

* item 16 (Days Accrued Leave Paid) - "30"
* item 25 (Separation Authority) - "AR [Army Regulation] 635-200, PARA [Paragraph] 16-1A"
* item 26 (Separation Code) - "KGM"
* item 28 (Narrative Reason for Separation) - "ACCEPT COMMISSION OR WARRANT IN THE ARMY"

3.  His record contains a DA Form 71 (Oath of Office – Military Personnel) that shows he was appointed as a Reserve commissioned officer in the rank/grade of second lieutenant (2LT)/O-1, effective 1 July 2010.

4.  Orders C-07-009995, issued by USAHRC, St. Louis, MO, dated 6 July 2010, assigned the applicant to the USAR Control Group (OADO (Officer Active Duty Obligor)), effective 1 July 2010.

5.  The DFAS Case Management System extract provided by the applicant shows:

* applicant was separated from active duty to accept an active commission
* the Chaplain Corps requires the Soldier to receive a Reserve Commission and attend the seminary
* the SPD Code on his DD Form 214 does not allow payment of accrued leave
* a request for waiver of his SPD code was initiated to allow officer payment for his 30 days leave

6.  On 22 March 2011, DFAS determined that:

* DFAS has no authority to change, amend, or waive an SPD code
* based on his SPD code, the applicant is not authorized payment of accrued leave
* suggest applicant apply to the ABCMR for waiver

7.  On 23 March 2011, an Active Army Pay Ombudsman at the U.S. Army Financial Management Command forwarded the applicant's request to this Board requesting a waiver (or change) of his SPD code to allow for compensation of his unused accrued leave.

8.  During the processing of this case, on 27 April 2011, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1.  The advisory official stated:

	a.  The applicant was discharged in accordance with Army Regulation
635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 16 (Selected Changes in Service Obligations), paragraph 16-1 (order to active duty as a commissioned or warrant officer).

	b.  Normally, enlisted Soldiers being discharged to become a commissioned or warrant officer have no break in service and consequently, any accrued annual leave on the Soldier’s enlisted Leave and Earnings Statement (LES) would transfer/carryover to the officer LES.

	c.  Since the applicant's Chaplain Corps chaplaincy was contingent upon successful completion of seminary, he was appointed an officer in the Army Reserve, which prevented his leave from being carried into the Reserve Component period; a unique rule not addressed in the Army Regulation or Financial Management Regulation (FMR), Volume 7A, Chapter 35, Separation Payments, resulting in an inability to carryover accrued annual leave or to receive payment for the accrued leave or transfer to the Reserve Component to attend seminary school.

	d.  Based on this oversight in the Army Regulation and FMR, the applicant's request for compensation for his accrued leave should be granted.

9.  On 3 May 2011, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On 11 May 2011, the applicant concurred with the advisory opinion.

10.  Army Regulation  635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  This regulation identifies the SPD code of KGM as the code to assign to members separating under the provisions of Army Regulation 635-200, paragraph 16-1a, by reason of “accept a commission or warrant in the Army.”  SPD code of KFF is the code to assign to members separating under the provisions of Army Regulation 635-200, paragraph 5-3, by reason of “Secretarial Authority.”

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 16-1a provides for discharging Soldiers for the purpose of being ordered to active duty as a commissioned or warrant officer in any branch of the Armed Forces.  Before such discharge, the separation authority must have documentary evidence from the proper authority that confirms the Soldier will be ordered to active duty if discharged from his/her enlisted status.  Discharge will be effective the day preceding the date of entry of duty as a commissioned or warrant officer.

   b.  Paragraph 5-3 (Secretarial Plenary Authority) states separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  Separations under this paragraph are 

effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive payment for or credited 30 days of accrued leave.

2.  The evidence of record confirms the applicant was honorably discharged from active duty on 30 June 2010, to accept a commission or warrant in the Army. Based on the reason and authority for his discharge, the SPD code "KGM" he was assigned is correct, however, this SPD code prevents authorization of pay for his accrued leave.

3.  As indicated in the advisory opinion, the unique circumstances surrounding the applicant's discharge resulting in the inability to carryover his accrued annual leave or payment for this leave is not addressed in the governing Army Regulation or FMR.  This oversight is through no fault of the applicant and has ultimately caused him an injustice.  As such, his DD Form 214 for the period ending 30 June 2010 should be corrected to allow him payment for his 30 days accrued leave.  Therefore, his DD Form 214 should be corrected as recommended below.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

	a.  deleting from item 25 of his DD form 214 for the period ending 30 June 2010 the entry "AR 635-200, Para 16-1A" and replacing it with the entry "Army Regulation 635-200, paragraph 5-3";

	b.  deleting from item 26 of his DD Form 214 for the period ending 30 June 2010 the entry "KGM" and replacing it with the entry "KFF";

	c.  deleting from item 28 of his DD Form 214 for the period ending 30 June 2010 the entry "Accept Commission or Warrant in the Army" and replacing it with the entry "Secretarial Authority"; and

	d.  paying him all pay and allowances due as a result of these corrections.



      ___________X____________
       	   CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20110005613



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ABCMR Record of Proceedings (cont)                                         AR20110005613



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