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ARMY | BCMR | CY1990-1993 | 9313309
Original file (9313309.rtf) Auto-classification: Denied
APPLICANT REQUESTS: Through counsel, that he be given full separation pay.
APPLICANT STATES : That when he was pending involuntary separation, he was told both verbally and in writing that he would receive full separation pay if he were separated due to weight control failure. Based on that information, he waived his right to a board of officers. At that time, he was making satisfactory progress on the weight control program (WCP), which would have required an elimination board to recommend his retention in accordance with Army regulations. Since he knew he could not be involuntarily separated, he only consented to his separation on the assurance that he would receive full separation pay. His discharge orders specified that he would receive full separation pay. However, those orders erroneously cited title 32, U.S. Code, the law governing the operation of the National Guard, instead of title 10, U.S. Code, the law governing soldiers serving on a federal status. Subsequently, the applicant was informed that he was not entitled to full separation pay. That due to the fact that he was separated due to weight control failure, he was only entitled to a portion of the full separation pay. Counsel argues that the applicant is entitled to the full separation pay under the theory of implied contract and, more importantly, statutory right.

In support of his request the applicant submits a counseling statement in which he was informed that his separation had been approved for 19 August 1992, his leave options, the “severance program” which would ease his transition to civilian life, and the mobilization day (drilling guardsman) waivers he would require to be assigned to a unit. On that counseling statement, the applicant himself entered a statement that the officer counseling him said that he would receive about $31,207.68 in separation pay if he accepted his separation. In response to the applicant’s statement, the officer counseling the applicant added to the counseling form that the applicant had stated that he would receive a certain sum of severance pay since his military occupational specialty was excess. That officer said that he had told the applicant that his military occupational specialty was only excess to the AGR staff. The applicant also submits a facsimile header sheet which contains a separation pay formula and the calculation for an unspecified individual’s separation pay, an amount totaling $24,966.14.

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

The applicant, born on 25 September 1948, was inducted into the Army on 7 November 1968 and was released from active duty on 10 June 1970. He was discharged from the USAR Control Group (Annual Training) on 6 November 1974 and had a break in service until his enlistment in the Army National Guard (ARNG) on 20 September 1975.

On 1 January 1979 he entered on active duty under title 10, U.S. Code, and was reverted to performing full time training duty (FTTD) under title 32, U.S. Code, (a status where a guardsman serves as if on active duty, earning full active duty pay and allowances and becoming eligible for placement on the retired list for years of service, but is under the laws, rules and regulations of the State, not the Federal Government) on 20 September 1979.

In October 1981 the applicant was placed in the WCP, measuring 68 inches high and weighing 248 pounds. In March 1983 the applicant was removed from the weight control program, having met the body fat standards. On 18 July 1986 he was again placed in the WCP, weighing 250 pounds and having a body fat content (BFC) of 29.6%. On 4 September 1986 he was removed from the WCP, then weighing 231 pounds.  On 1 November 1986 he was again placed on the WCP having a BFC of 31.74%. He continued to exceed the BFC and attended the Advanced Noncommissioned Officer Course in May 1987. Prior to his completion of that course in July 1987, he was removed from the WCP, weighing 226 pounds. On 21 October 1987 he was again entered in the WCP, weighing 242 pounds and having a BFC of 28.79%.

On 16 November 1987 an AGR Tour Continuation Board recommended that the applicant be released from his AGR tour. In January 1988, The Adjutant General of Vermont amended that recommendation, giving the applicant 1 year to meet BFC standards. The Adjutant General directed that the applicant be separated if he did not meet BFC standards at that time. In response to that directive, the applicant was weighed and tested for BFC on 15 January 1988. He then weighed 261 pounds and had a BFC of 30.04%. He continued to exceed the BFC, being weighed in at 273, 259, 275, 250, and 258 pounds, respectively, during the 1 year grace period.

At the end of the grace period, on 19 January 1989, the applicant was weighed and tested for BFC. At that time he weighed 260 pounds and had a BFC of 32.64%.

Instead of being released from active duty, the Adjutant General again gave the applicant a reprieve until 7 April 1990, in consideration of the recent death of his mother.

The applicant continued to exceed the BFC but, on 21 May 1990, was granted a “final” opportunity by the Adjutant General to meet BFC standards. The Adjutant General informed the applicant that he would review his case again in January 1991.

The applicant continued to exceed the BFC, measuring 32.42%, 32.70%, and 32.70%, respectively, during the “final” grace period.

At the end of the “final” grace period, the applicant still exceeding the allowable BFC. however, the Adjutant General once again gave him the benefit of doubt and give him until the expiration of his term of service on 19 September 1991 to meet BFC standards.

On 30 August 1991 the applicant’s enlistment was extended for 11 months to allow him to enter and complete alcohol rehabilitation treatment.

On 14 April 1992 a recommendation to separate the applicant was forwarded. However, that recommendation was disapproved, with a directive issued to extend the applicant’s enlistment to allow him to attain 20 years and 6 months of creditable service for retired pay.

Accordingly, on 9 September 1992 the applicant was honorably released from FTTD in pay grade E-7 and assigned to a unit in the Vermont Army National Guard. The DD Form 214, Certificate of Release or Discharge from Active Duty, he was issued shows that he had 13 years, 8 months and 9 days of active duty during that period of service, he had 1 year, 7 months and 4 days of prior active duty, and he had 7 years, 8 months and 7 days of prior inactive duty. He had been awarded the military occupational specialties of unit supply sergeant, recruiter, and cavalry scout.

The orders separating him contained the entry “Soldier is entitled to full separation pay in accordance with Title 32 USC 502(f)”, and listed the separation program designator (SPD) for his release from active duty as “LGH.”

Army Regulation 635-5-1 lists the SPD “LGH” as early release of Reserve Component personnel serving AGR tours under 10 U.S. Code. An amendment to the applicant’s separation orders then changed his SPD to “LFV”, which designates an individual separated for other designated physical or mental conditions.

Army Regulation 600-9 provides the policies and procedures for the Army WCP. Table 1 of this regulation lists the screening weight of the applicant’s height as between 170 and 181 pounds, depending on age. Paragraph 20 lists the maximum allowable BFC for males as between 20% and 26%, depending on age. Paragraph 21e(1) defines satisfactory weight loss as between 3 and 8 pounds a month.  Paragraph 21e(2) provides for the involuntary separation of an individual on the WCP who fails to make satisfactory progress for 2 consecutive months. Paragraph 21g provides for the involuntary separation of an individual on the WCP for fails to make satisfactory progress after 6 months.  Paragraph 21k states that an individual who is removed from the WCP due to compliance with the BFC standards and who is found to exceed the BFC within 1 year of his or her removal from the program may be separated.
Army Regulation 635-200 provides for the separation of Active Army enlisted soldiers, including ARNG and USAR enlisted soldiers ordered to active duty, and AGR soldiers serving under title 10, U.S. Code.

National Guard Regulation 600-5 provides the policy and procedures for managing AGR soldiers serving under title 32, U.S. Code. Chapter 6 of this regulation provides for the separation of soldiers on FTTD for cause. There is no requirement to offer a guardsman on FTTD being considered for involuntary separation a board of officers. A guardsman’s rights while serving on FTTD consist solely of replying to his or her commander’s recommendation for separation.

Title l0, United States Code, section ll74, as amplified in the Department of Defense Pay Manual (DODPM), chapter 4, part B, specifies that a soldier who has more than 6 years continuous active duty, including individuals serving in an AGR status, including FTTD, and is separated for mandatory or medical reasons, may be entitled to separation pay up to an amount not to exceed $30,000.00. Personnel who are not fully qualified for retention and are separated involuntarily, however, are only entitled to half separation pay up to an amount not to exceed $l5,000.00.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the National Guard Bureau (NGB).  The NGB stated that the applicant was involuntarily separated due to his WCP failure, a reason for separation which only authorizes half separation pay. The NGB opines that if he was led to believe that he would receive full separation pay, it was probably due to the person telling him that not knowing the type of separation he was pending.
The applicant’s counsel responded to the NGB advisory opinion, stating that the issue in this case is the applicant’s separation in 1992, not whether he should have been separated at an earlier date. Counsel reiterates that the applicant only accepted his separation by waiving a board of officers based on the assurance that he would receive full separation pay. Therefore, his decision to waive the board of officers was not a totally informed decision, which now requires him to be given full separation pay. Counsel also requests in this rebuttal that a (unspecified) Government claim against the applicant be waived.

 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, it is concluded:

1. The applicant was separated due to his failure to meet the acceptable body fat standards. As such, he was properly paid half separation pay.

2. Contrary to counsel’s contention, the officer giving the applicant his counseling statement does not say that he would receive full separation pay. The applicant, not the officer counseling him, stated on that document that he would receive a certain sum of money if he accepted his separation. The facsimile header sheet submitted by the applicant does not specify who the calculation was being conducted on, does not indicate that the individual who was doing the calculation was aware that it was being prepared for an individual who was being involuntarily separated (if it was), and specified a total separation pay totaling $24,966.14, a sum far less than that claimed by the applicant. These facts do not, in any way, constitute false representation by the Army. Although the orders separating the applicant did erroneously state that he was entitled to full separation pay, those orders were issued after the fact and could not have influenced the applicant’s decision as to whether to request a board of officers or not. As for the statutory authority for the applicant’s separation, contrary to counsel’s contention, the citation of title 32, U.S. Code, was appropriate. The applicant was serving on FTTD, not active duty.

3. Contrary to counsel’s contentions espoused in his rebuttal to the NGB’s advisory opinion, the fact that the applicant should have been separated far earlier then he was is germane in this case. Counsel states that the applicant was making satisfactory progress on the WCP and would have been required to be retained if he had demanded that a board of officers consider his case. The record clearly shows that the applicant had not made satisfactory progress on the WCP for a prolonged period of time. There is absolutely no reason to believe that a board of officers would have recommended the applicant’s retention.

4. However, whether a board of officers would have retained the applicant is a moot point. Under the provisions of Army Regulation 600-5 he was not entitled to have a board of officers consider his case. That he was given that option was an error which, it is presumed, would have been caught before any board would have been appointed or convened.

5. Counsel did not furnish the Board any documentation pertaining to the debt against the applicant that counsel wants the Board to waive. However, the Board would not consider this issue even if documentation had been presented since the applicant had not exhausted his administrative remedies. To wit, he has not applied to the Defense Finance and Accounting Service for debt forgiveness.

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




                                                      Karl F. Schneider
                                                       Acting Director

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