DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2004-097
XXXXXXXXXXXXXX
xxxxxxxxxxxxxxxxx
FINAL DECISION
Author: Hale, D.
This proceeding was conducted according to the provisions of section 1552 of
title 10 and section 425 of title 14 of the United States Code. On April 15, 2004, the
BCMR docketed the applicant’s request for correction.
appointed members who were designated to serve as the Board in this case.
This final decision, dated November 17, 2004, is signed by the three duly
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant asked the Board to correct his record to show that 11.5 days of
leave that he sold at the end of his enlistment with the Army National Guard should not
be deducted from the 60 days of leave that he is allowed to sell during his military
career. The applicant alleged that he accrued 11.5 days of leave while on active duty
training with the Army National Guard and sold the leave upon his discharge in 1984.
The applicant enlisted in the Coast Guard in 1992, and in March 2004 learned that the
Coast Guard had deducted the 11.5 days of previously sold leave from the 60 days of
leave he is entitled to sell during his military career. The applicant alleged that the
Coast Guard Pay Manual states that the 60-day career maximum should not be reduced
by the 11.5 days of previously sold leave because he accrued the leave while on active
duty training with the Army National Guard.
SUMMARY OF THE RECORD
On September 24, 1984, the applicant was discharged from the Army National
Guard after completing 4 months and 14 days of active duty service. His DD214
indicates that upon his discharge, he sold 11.5 days of annual leave that he had accrued
while on active duty. On April 14, 1992, the applicant enlisted in the Coast Guard and
he continues to serve on active duty with the Coast Guard.
Chapter 10.A.1.a. of the Coast Guard Pay Manual, under the authority set forth
in 37 U.S.C. § 501, states that effective February 10, 1976, members may be paid for no
more than 60 days of accrued leave during their military careers. Payments for accrued
leave made before this date are excluded from the 60-day limitation.
On December 28, 2001, Congress passed Public Law 107-107, section 651 of
which amended 37 U.S.C. § 501(b)(5) by adding subparagraph (D) to provide that the
60-day limitation shall not apply to “leave accrued … by a member of a reserve
component while serving on active duty, full-time National Guard duty, or active duty
for training for a period of more than 30 days but not in excess of 365 days.” Paragraph
(b) of the section 651 states the following: “Application of Amendment—Subparagraph
(D) of section 501(b)(5) of title 37, United States Code, as added by subsection (a)(3),
shall apply with respect to periods of active duty beginning on or after October 1, 2001.”
VIEWS OF THE COAST GUARD
On March 30, 2004, the Judge Advocate General of the Coast Guard (TJAG) sub-
mitted an advisory opinion in which he recommended that the Board deny the
applicant’s request. He based his recommendation on a June 21, 2004, memorandum on
the case prepared by the Coast Guard Personnel Command (CGPC).
CGPC stated that the applicant was not entitled to relief because the law that
governed the selling of accumulated annual leave applied to members of the Reserves
or National Guard who sold leave after October 1, 2001. The applicant sold leave at the
time of his release from active duty in 1984. CGPC concluded by noting that there is no
retroactive provision in the law that would allow the applicant to avoid the alleged
injustice.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On August 18, 2004, the Chair sent the applicant a copy of the views of the Coast
Guard and invited him to respond within 30 days. No response was received.
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law:
1.
The Board has jurisdiction over this matter pursuant to the provisions of
2.
10 U.S.C. § 1552. The application was timely.
The applicant alleged that the applicable Coast Guard regulations provide
that his 60-day career total should not be diminished by the 11.5 days of leave he sold
upon his release from active duty from the National Guard in 1984. However, the
Board notes that the Coast Guard regulation governing the sale of accumulated leave is
plainly defined. Chapter 10.A.1.a.1. of the Coast Guard Pay Manual states that effective
February 10, 1976, members may be paid for no more than 60 days of accrued leave
during the member’s military career. The regulation also provides that leave sold by a
reservist serving on active duty after October 1, 2001, shall not apply to the member’s
career total. The regulation is consistent with Section 651(b) of Public Law 107-107,
which clearly stated that the exception for reserve and National Guard service only
applies to periods of active duty “beginning on or after October 1, 2001.”
3.
4.
The record indicates that the applicant does not meet the eligibility criteria
set forth in the Coast Guard Personnel Manual and Public Law 107-107. The applicant
served on active duty with the Army National Guard in 1984, and therefore his military
service was more than 15 years prior to the effective date of the exception provided for
the sale of leave by reservists and National Guard members.
Accordingly, the applicant’s request should be denied.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
The application of XXXXXXXXXXXXXXXXXXXX, USCG, for correction of his
military record is denied.
ORDER
Philip B. Busch
Harold C. Davis, M.D.
George A. Weller
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