2. The applicant requests that he be authorized separation pay for his 10 years, 2 months, and 21 days of total active service.
3. The applicant states, in effect, that he was eligible to receive separation pay at the time he separated from the Army but was never informed of his entitlement.
4. His military records show that he enlisted on 8 April 1981 and remained on active duty through a series of reenlistments. He was promoted to the pay grade of E-5 on 4 September 1987.
5. On 17 December 1990, while serving as a military policeman assigned to Fort Riley, Kansas and deployed to Saudi Arabia, nonjudicial punishment was imposed against the applicant for disobeying a lawful order and being disrespectful to a commissioned officer. His punishment consisted of a reduction to the pay grade of E-4 and a forfeiture of pay which was suspended for a period of 2 months. The applicant appealed his punishment but his appeal was denied.
6. On 28 June 1991 the applicant was honorably discharged in the pay grade of E-4 under the provisions of Army Regulation 635-200, chapter 4, upon the expiration of his term of service. He had served 10 years, 2 months, and 21 days of total active service
7. Army Regulation 601-280 serves as the authority for the Total Army Retention Program. It outlines the procedures and criteria for immediate reenlistment of soldiers serving on active duty. It states, in pertinent part, that a soldier serving on active duty in the pay grade of E-4 or lower will not be allowed to reenlist for a period that will exceed the maximum retention control point of 8 years and 29 days of total active service.
8. Department of the Army Circular 635-92-1 outlines eligibility criteria for separation pay and provides separation pay formulas as authorized by the Department of Defense Instruction 1332.29 dated 20 June 1991 and other Headquarters, Department of the Army guidance, resulting from Public Law 101-510, The National Defense Authorization Act for Fiscal Year 1991. The circular also illustrates the various types of separations that are either eligible or ineligible for separation pay. It states, in pertinent part, that separation pay is authorized for soldiers serving on active duty on 5 November 1990 who were involuntarily separated prior to completion of obligated service or who were denied reenlistment/continuation. Soldiers who are ineligible for reenlistment because they are approaching their retention control point (RCP) are not required to request extension up to the RCP are not required to request extension up to the RCP as a prerequisite for separation pay.
CONCLUSIONS:
1. When the applicant was reduced to the pay grade of E-4 on 17 December 1990, he was, in effect, barred from reenlistment due to exceeding the RCP for his grade.
2. Consequently, the applicant was honorably discharged at the expiration of his term of service on 28 June 1991 without the benefit of separation pay. However, on 20 June 1991, the Department had announced the provisions of the implementing instructions which authorized separation pay for soldiers in the applicants category.
3. Therefore, it appears that the applicant has been unjustly denied a benefit for which he was entitled to receive. Accordingly, it would be in the interest of justice to authorize the applicant full separation pay for his service.
4. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected to reflect that the individual concerned was separated by reason of his ETS and authorized full separation pay on 28 June 1991 in the pay grade of E-4.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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