IN THE CASE OF:  	  

		BOARD DATE:  11 June 2015  	  

		DOCKET NUMBER:  AR20140018115 


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 correction of his leave balance and repayment of 2.5 leave days charged after retirement.

2.  The applicant states 

	a.  He recently retired as an Active Guard Reserve (AGR) Soldier of the Kansas Army National Guard (KSARNG) with over 23 years of active duty.  He was offered a full-time position with ESGR [Employer Support of the Guard and Reserve] and had to retire quickly to take the offer so his retirement preparation time was compressed.  As he was preparing his retirement request, he reviewed the Full Time Support Management Control System (FTSMCS) website at https://ftsmcs.ngb.army.mil/index.htm (maintained by National Guard Bureau (NGB) as an online leave log) for leave days remaining.  He had calculated that he would have 61 days of leave by his retirement date of 30 November 2013 and that is what he requested.  He did not know that leave he had taken on 13-14 June 2013 had shown as processed on FTSMCS had not been processed by the Defense Finance and Accounting Service (DFAS) against his leave account.

	b.  The explanation he received was that it was initially sent for processing, but the batch it was in was rejected.  It was discovered on 4 December 2013     (4 days after he retired) and sent for processing again and this time it was processed.  Since he did not have any leave on his account, it was declared advance leave and he was assigned a debt for those 2 days plus an additional half day since he cannot earn pay and allowances while in an advance leave status. This created a debt for 2.5 days of leave that was collected by DFAS.  He submitted a rebuttal to remove the debt with them first, but was denied.  He understands that they are not a policy branch and only act upon debts established elsewhere.  During his transition leave period, he was required to be present for duty for two days (phase two of his physical at Fort Riley on 8 October 2013 and out-processing at Fort Leavenworth on 17 October 2013) while he was on transition leave due to the compressed retirement timeframe.  He lives in Topeka, KS, so each of these appointments had at least two and a half to three hours of traveling time so the day was full.  He should not have been on leave for those two days of service.  He is including the email and screenshots he has concerning the leave website to show the two different days that the leave was submitted for processing.  He is also including copies of the debt paperwork from DFAS and copies of the physical and DD Form 214 (Certificate of Release or Discharge from Active Duty) to verify the dates of service in the current transition leave period.  He is also including the DA Form 31 (Request and Authority for Leave) for the leave from 1 October 2013 to 30 November 2013.

	c.  He should not have been on transition leave from 1 October 2013 to 30 November 2013 (61 days leave).  He should have been on ordinary leave 
1 to 7 October (7 days), with duty on 8 October (for his physical).  He should have been on ordinary leave 9 to 16 October (8 days), with duty on 17 October (to final out).  He should have been on transition leave 18 October to 30 November 2013 (44 days), and on retired rolls 1 December 2013.  He should have been charged for a total of 59 leave days, not 61.  He wants his leave record corrected and 2.5 days paid back.

3.  The applicant provides:

* Request for Retirement from Active Duty
* Retirement orders
* December 2013 Leave and Earnings Statement 
* Debt Computation Summary 
* Debt letter from DFAS
* Email exchange
* Leave Detail Printout
* DFAS debt letter
* May 2014 Retiree Account Statement
* Back page of DD Form 2808 (Report of Medical Examination)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 31 (Request and Authority for Leave)
* Finance Memorandum of Appointment 


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the KSARNG on 4 February 1985. He entered active duty on 26 November 1990.  He served through multiple extensions and he attained the rank/grade of first sergeant (1SG)/E-8 

2.  On 10 September 2013, he requested through his chain of command to retire from active duty effective 30 November 2013.  He requested 61 days of transition leave beginning on 1 October 2013.  

3.  Joint Force Headquarters, KSARNG, published Orders 252-700 releasing him from active duty effective 30 November 2013 and placing him on the Retired List in his retired rank/grade of 1SG/E-8 effective 1 December 2013. 

4.  His DD Form 214 shows he retired on 30 November 2013.  He completed over 23 years of creditable active service. 

5.  He provides: 

	a.  A December 2013 Leave and Earnings Statement showing he had a previous leave balance of 54 days and earned 7.5 days for a balance of 61 days. He previously sold 60 days of leave and he was also charged with leave taken back in June 2013 (13 to 14 June 2013) in the form of advanced leave.  

	b.  A Debt Computation Summary of entitlements and deductions in connection with his retirement.  He had a leave balance of 54 days and earned 5 days (from October to November 2013) for a balance of 59 days.  He used 61 days.

	c.  A letter, dated 12 February 2014, informing him of the debt as a result of overpayment before his separation.  The debt is due to leave he took from 1 October 2013 to 30 November 2013 resulting in a negative leave balance of 2.5 days which includes a non-accrual of 0.5 days.  He was not entitled to pay or allowances during periods of negative leave balance. 

	d.  An email exchange with a Kansas Guard and Reserve Support contractor in relation to the leave balance. 

	e.  A local NGB printout of his leave balance. 

	f.  A second notice from DFAS of the debt.  It also explains the debt is due to leave he took from 1 October 2013 to 30 November 2013 resulting in a negative leave balance of 2.5 days which includes a non-accrual of 0.5 days.  He was not entitled to pay or allowances during periods of negative leave balance. 

	g.  A detailed audit by DFAS of his pay records with a letter explaining the debt of $734.51 as a result of overpayment as well as confirming the validity of the debt.  A Statement of Military Leave Account was included and identified all periods of leave used by the applicant in 2013.  

	h.  Multiple Retiree Account Statements showing a portion of the debt was collected from his retired pay.

	i.  The back page of a DD Form 2808 showing a doctor assigned a PULHES to his DD Form 2808 on 8 October 2008.

	j.  A DA Form 31 initiated by the applicant on 10 September 2013.  He requested 61 days of transition leave from 1 October 2013 to 30 November 2013 and indicated he had 64 days of accrued leave 

	k.  A Finance Memorandum of Appointment showing he was scheduled for separation and intended to take 61 days of leave.

6.  An advisory opinion was received from the Office of the Deputy Chief of Staff, G-1, on 30 December 2014 in the processing of this case.  The G-1 official recommended denial of the applicant's request and stated that the documents provided by him were carefully reviewed by the G-1 office and by DFAS.  A DFAS audit of the applicant's leave history indicated there were no discrepancies noted.  The debt recoupment of 2.5 days of excess leave after retirement was due to his transition leave period exceeding the number of days accrued at time of separation. 

7.  The applicant responded to the advisory opinion voicing his disagreement and claiming no one told him he would have a negative leave balance upon separation.  He argued that if he had known he would have a negative leave balance, he would have taken steps to address this issue.  He checked the FTSMCS, and each time this system sent the leave for processing.  It looked like in December 2013, the NGB found a leave batch was not processed so they re-transmitted it to DFAS in December 2013 after his retirement.  Nonetheless, he did work on 8 October 2013 (physical) and on 17 October 2013 (outprocessing).  These 2 days should substitute the leave he took from 13 to 14 June 2013 but was not charged.

8.  Army Regulation 600-8-11 (Leave and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.

	a.  Paragraph 2-2 states the leave and pass program is designed to allow Soldiers to use their authorized leave to the maximum extent possible.

	b.  Paragraph 2–3 states Soldiers on active duty earn 30 days of leave a year with pay and allowances at the rate of 2 1?2 days a month.  This entitlement excludes periods of absent without leave (AWOL), confinement resulting from a court-martial sentence, confinement for more than 1 day while awaiting court-martial provided Soldier is convicted, excess leave, or unauthorized absence because of detention by civil authorities.

	c.  Paragraph 2-4 states payment of accrued leave is made per Title 37, U.S. Code, section 501h.  By law, payment of accrued leave is limited to 60 days one time during a military career, unless earned in a missing status or under other condition (not applicable here). 

	d.  Paragraph 2-5 states leave is subtracted for lost time, excess leave, or other non-pay status.  Subtract 2 1?2 days leave for each full month of absence.  For a part-month absence, use table 2–1 to subtract leave. Table 2-1 states for a negative leave balance of 1 to 6 days, subtract 1/2 day. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant took leave from 13 to 14 June 2013 (2 days).  This leave was not timely processed due to what appears to be a system failure in transmitting his leave at the time.  When he requested transition leave, he presumed he had 61 days of accrued leave.  As such, he requested 61 days of transition leave beginning on 1 October 2013 and terminating on 30 November 2013.

2.  Meanwhile, the leave that he took in June was processed by the servicing finance system or office and his leave balance was less than what he projected.  As a result, he was charged with excess leave.  During excess leave, a Soldier does not earn leave.  Because he had 2 days of excess leave, he lost 1/2 day.  

3.  When he retired, he owed the equivalent of 2.5 days of excess leave.  DFAS audited his pay records and advised him of the source and validity of the debt.  Likewise, the G-1 also conducted an audit of his pay record and confirmed the debt and its validity.

4.  Although he shows his DD Form 2808 was marked on 8 October 2013 and he outprocssed on 17 October 2013, he was on transition leave on both days as per the DA Form 31 he provides.  Those appointments do not substitute for the lost days or waive his debt.  He took leave and does not want to be charged for it.  He should not be allowed to profit from leave he took and now feels should be forgiven.  He is not entitled to the requested relief. 

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20140018115



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ABCMR Record of Proceedings (cont)                                         AR20140018115



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