PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 July 2001
         DOCKET NUMBER: AR2001055894


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Roger W. Able		Member
Mr. Kenneth W. Lapin		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that her active service be recalculated and that she be issued a DD Form 215 (Correction to Certificate of Release or Discharge from Active Duty, DD Form 214).

3. The applicant states, in effect, that she served over 6 months of active duty at the time she was discharged for physical disability in September 1989. Her discharge orders state that she could receive severance pay if she served for at least 6 months of active duty. She met that requirement; however, the DD Form 214 she was issued only shows 2 months and 3 days of active duty, causing her not to receive severance pay. Besides her active duty, she had additional duty time, although as a Federal employee, which she was told counted as active duty, from September to October 1985. She was also sent to Wright-Patterson Air Force Base, OH for physical therapy in 1986 to 1987 and for which she was paid by the Army as an E-4.

4. The applicant’s military records are not available. Information contained herein was obtained from alternate sources.

5. The applicant enlisted in the U. S. Army Reserve (USAR) on 26 June 1981. Orders 193-42, Armed Forces Examining and Entrance Station, Detroit, MI dated 26 June 1981 show that she was to report to Fort Jackson, SC on 29 June 1981 for basic training. Her Leave and Earnings Statement (LES) for the period 1 – 31 July 1981 verifies that she entered active duty on 29 June 1981. Her tour of duty terminated on 2 September 1981 after completion of 2 months and 3 days of active duty. On 2 September 1981, she was issued an Active Duty Report, DD Form 220, which erroneously shows she entered active duty on 29 July 1981.

6. A Retirement Points Summary printout shows that the applicant was credited with 76 active duty points for retirement year ending (RYE) 26 June 1982; 69 active duty points for RYE 26 June 1983; 14 active duty points for RYE 26 June 1984; 0 active duty points for RYE 26 June 1985; 88 active duty retirement points for RYE 26 June 1986; 11 active points for RYE 26 June 1987; and 0 active duty retirement points thereafter for a total of 258 active duty points. Many of these active duty retirement points are confirmed by the numerous LESs provided by the applicant.

7. Military Pay Vouchers provided by the applicant for the periods 6 – 22 June, 27 – 28 April, 30 – 31 October, 1 – 30 November, and 1 – 31 December 1986 and for the periods 1 – 31 January, 1 – 28 February, 1 – 31 March, and 1 – 15 April 1987 show that she was paid incapacitation pay during those periods.

8. On 19 September 1989, the applicant was discharged for disability. Orders D167-5, U. S. Total Army Personnel Command dated 29 August 1989 authorized the applicant disability severance pay in the grade of E-4 based upon 2 months and 22 days service as computed under Title 10, U. S. Code section 1208 provided she had completed at least 6 months of active duty. Her percentage of disability was 10 percent.

8. Records at the Defense Finance and Accounting Service – Indianapolis Center show that she was separated on 25 June 1989 and that she did not receive any severance or separation pay.

9. The Department of Defense Financial Management Regulations, Volume 7A, paragraph 350401 states that a member separated from the military service for physical disability is entitled to severance pay if qualified as prescribed in personnel regulations for the Military Service concerned.

10. Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. Paragraph C-12 states that a soldier with less than 6 months’ service cannot receive severance pay.

11. Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon release from active military service or control of the Army. It states that a DD Form 214 will be prepared for all personnel after completing 90 days or more of continuous ADT, full-time training duty, or active duty support. It is also prepared for Reserve Component soldiers completing initial active duty for training that results in the award of a military occupational specialty even when the active duty period was less than 90 days and for certain other specified periods of active duty of less than 90 days. This includes completion of advanced individual training (AIT) under the USAR Split Training Program. Otherwise, normally a DD Form 220 is prepared.

12. Title 10, U. S. Code, section 101(d) defines “active duty” as full-time duty in the active military service of the United States.

13. Army Regulation 135-381 establishes procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits, incapacitation compensation, and death benefits. Chapter 4 states that section 204, Title 37, U. S. Code provides authority for continuation of pay and allowances under certain circumstances to soldiers who are disabled in the line of duty from injury, illness, or disease. For the purposes of this regulation such continuation of pay and allowances is referred to as “incapacitation pay.” Prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income. On release from active duty or termination of inactive duty training, a soldier may qualify for this entitlement. Soldiers are entitled to a portion of the same monthly

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pay and allowances as is provided members of the Active Army with corresponding grade, length of service, marital status, and number of dependents for each period the soldier is unable to perform normal military duties or can demonstrate loss of compensation from nonmilitary income. Soldiers will not be issued active duty orders in place of incapacitation pay as a means of providing benefits to which they might otherwise not be entitled. Entitlement to incapacitation pay does not place the member on active duty.

CONCLUSIONS:

1. The applicant’s separation orders entitled her to severance pay due to a disability rated at 10 percent provided she had completed at least 6 months of active duty. The evidence of record shows that the applicant had completed in excess of 6 months (180 days) of active duty at the time she was separated. The regulation does not require 6 months of continuous active duty; however, presumably the Army Finance and Accounting Service at the time did not determine she had 6 months of active duty because it was not continuous. She is, however, entitled to the disability severance pay.

2. Neither the applicant’s service as a Federal employee nor the period of time she drew incapacitation pay entitle her to active duty credit.

3. The applicant should have received a DD Form 214 for the period she attended AIT. She did not provide it so it cannot be determined if it contains erroneous information. However, as she did not complete 180 days of active duty until her fifth year of service it is unlikely that that DD Form 214 could be corrected as she requests. She did provide the DD Form 220 she received after completing basic training and that form does contain an error in item 6. Her orders and her LES show that she entered active duty on 29 June 1981, not 29 July 1981.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the applicant was entitled to disability severance pay and by paying her such pay in accordance with her separation orders and her active duty time as verified by her Retirement Points Summary printout.

2. That the applicant’s DD Form 220 dated 2 September 1981, item 6 be corrected to show she entered active duty on 29 June 1981.

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3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__kak___ __rwa___ __kwl___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Karol A. Kennedy
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001055894
SUFFIX
RECON
DATE BOARDED	20010710
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	128.08
2.
3.
4.
5.
6.