PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 19 MARCH 2002
         DOCKET NUMBER: AR2001059258


         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Stanley Kelley		Member
Mr. Elzey J. Arledge, Jr.		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, in effect, that his indebtedness to the Army be cancelled or remitted and that the Board reconsider his request to be credited with more than 2 years of military service. He states, in effect, that as a result of the Board’s 1999 action retroactively promoting him to pay grade E-6, and permitting him to reenlist in the Army, he is required to repay his involuntary separation pay. He states that the requirement to repay the separation pay “works a substantial injustice on (his) family and (himself).” He also notes that he should be credited with an additional 2 years and 10 months “for the purpose of retirement…considering that the interruption of (his) career was through no fault of (his) own.” He notes that had it not been for the Army’s error he would “now have over 19 years of active duty and, with (his) reserve time, (he) would have over 20 years for retirement.” He states that he would have been retirement eligible “but for the erroneous separation and two year break in service.” The applicant states that at this point in his life he would like to retire and “be with (his) wife and family as (he) had planned” and does not want to subject his family to another move. In support of his request he submits a DA Form 3508-R (Application for Remission or Cancellation of Indebtedness) and copies of letters from DFAS (Defense Finance and Accounting Services) indicating the source of his indebtedness.

3. Incorporated herein by reference are military records, which were summarized in a memorandum, prepared to reflect the Board's original consideration of his case (AR1999022483) on 21 July 1999.

4. In the Board’s original deliberation we concluded that it would be inappropriate to reinstate the applicant on active duty because it could not “retroactively presume” that the applicant would have reenlisted at the conclusion of his original enlistment contract in 1997. The applicant now contends that had it not been for the Army’s error he would have been eligible for retirement and as such the period of time between his erroneous separation (1 May 1997) and his reenlistment (25 February 2000) should be credited as active duty service. While Army Regulation 15-185 requires that applicants submit new evidence or arguments within 1 year of the Board’s original decision, the staff of the Board has recommended that the Board address the applicant’s new argument as an exception to that 1-year standard. We are satisfied that applicant’s subsequent reenlistment is substantial relevant new evidence authorizing reconsideration, under Army Regulation 15-185, Army Board for Correction of Military Records (2000), at paragraph 2-15b. Accordingly, the Board reviews the substance of applicant’s arguments.

5. Records available to the Board indicate the applicant initially entered active duty on 1 November 1978 and served until 30 October 1981 (a period of 2 years, 11 months, and 30 days) when he was released from active duty and transferred to the U.S. Army Control Group (Reinforcement). On 12 March 1984 the applicant was voluntarily transferred from the Control Group to the 244^th Personnel Service Company. On 31 October 1984, at the conclusion of his statutory service obligation, the applicant was honorably discharged from the U.S. Army Reserve (USAR). There is no indication in available records that the applicant had a “qualifying” year for retirement purposes between 31 October 1981 and 31 October 1984 (a period of 3 years).

6. On 17 June 1985 the applicant enlisted in the USAR under the Army’s DEP (Delayed Entry/Enlistment Program). On 30 July 1985 the applicant was discharged from the DEP and enlisted in the Regular Army. The applicant then served continuously until 1 May 1997, when he was discharged as a result of reaching the Army’s RCP (Retention Control Point) for soldiers serving in pay grade E-5, and transferred to the Army National Guard. At the time of his 1997 involuntary separation from active duty the applicant had accumulated approximately 14 years and 9 months of active Federal service and 3 years of inactive service. Although only 3 months shy of 15 years, the applicant did not lose an opportunity for a 15-year retirement because a 15-year retirement was not authorized in his MOS (military occupational specialty) during the period in which he would have reached 15 years but for his separation. Additionally, the applicant did not meet eligibility requirements for the early retirement program in either of the two categories, which were authorized such retirements in FY (fiscal year) 97.

7. Following the applicant’s separation from active duty in 1997 he served in the Army National Guard until 15 November 1998, a period of 1 year, 6 months, and 14 days. Again there is no indication that he accumulated sufficient points while in the National Guard to have that service “qualify” for retirement purposes.

8. As a result of the Board’s 1999 action, the applicant reenlisted and returned to active duty on 25 February 2000 and is currently on active duty. The applicant is indebted to the Army in excess of $35,000 as a result of an action to recoup his involuntary separation pay, which resulted at our direction when he reenlisted and returned to active duty in February 2000.

9. Army Regulation 635-200, Enlisted Personnel (2000), provides for the retirement of Regular Army, Army National Guard and USAR soldiers, with immediate monthly annuity, who have completed 20, but less than 30 years of active Federal service in the US Armed Forces.

10. Army Regulation 135-180, Qualifying Service for Retired Pay Non-Regular Service (1987), implements the statutory authority governing what constitutes qualifying service for retired pay for non-regular service in the Reserve Component. Chapter 2, in pertinent part at paragraphs 2-1 and 2-8, states that to be eligible for retired pay, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service, the last eight of which are served in a reserve component. A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points. For service in an active component, a qualifying year of service is a full calendar year consisting of 365 or 366 days, as appropriate.

11. Department of the Army Circular 635-92-1, Separation Pay (1992), establishes the policies and provision for receipt of separation (nondisability) pay. It states that officers and enlisted members of the Regular and Reserve components involuntarily separated from active duty, under certain circumstance, are entitled to full separation pay. Enlisted soldiers denied continuation on active duty under established retention control points are in one of the categories authorized full separation pay.

12. Army Regulation 600-4, Remission or Cancellation of Indebtness for Enlisted Members (1998), provides that enlisted soldiers on active duty with an acknowledged valid debt may apply for remission or cancellation of that debt based on injustice, hardship, or both. Applications are submitted via the enlisted soldier’s chain of command to the Commander, U.S. Total Army Personnel Command.

CONCLUSIONS:

1. The applicant’s argument that had it not been for the Army’s error, he would now have more than 20 years of service and been eligible for immediate retirement is without foundation. The Board notes that in 1997 the applicant had approximately 14 years and 9 months of active Federal service. He would have needed approximately 5 years and 3 months of additional active Federal service, until August 2002, to qualify for retirement under Army Regulation 635-200, with entitlement to an immediate monthly annuity. Contrary to the applicant’s belief, his service in the USAR between 1981 and 1984 is not considered active Federal service and as such is not used to compute retirement eligibility under Army Regulation 635-200. Had he remained on active duty beyond his 1997 separation, without a break in service, the applicant will not have qualified for retirement, with an immediate annuity, until approximately August 2002.

2. However, the applicant has presented a persuasive argument that his 1 May 1997 separation should be voided and that his records should be corrected to reflect that he served continuously from 1 May 1997 until 25 February 2000 when he reenlisted. The Board is now convinced, in view of the fact that the applicant did reenlist in February 2000, that in all likelihood he would have reenlisted in May 1997 and continued his military service, had the Army not erred in the computation of his promotion points and promoted him. His records should be corrected accordingly.

3. The Board is also persuaded by the applicant, that collection of his more than $35,000 debt at this time works a hardship on him and his family. He has shown that the collection of more than $1200.00 each month toward the reduction of his debt results in his expenditures each month exceeding his income by more than $1000.00. The Board concludes that such a situation shows a clear financial hardship for the applicant and his family.

a. Moreover, the Board is concerned about his financial hardship, which was generated as a result of his erroneous separation by the Army. However, because the Defense Finance and Accounting Service is in a position to possibly grant appropriate relief, the debt is not yet ripe for the Board’s intervention.

b. The Board’s action to void the applicant’s 1 May 1997 separation and reinstate him removes the separation pay entitlement. As a result of the reinstatement the applicant will be entitled to all back pay and allowances. The Board advises the applicant that if he has a debt to the government after the DFAS reconciles his entitlements and offsets those entitlements by his separation pay, he should exhaust his administrative avenues to have the debt remitted or canceled via the provisions of Army Regulation 600-4, Remission or Cancellation of Indebtness for Enlisted Members (1998).

c. The Board grants the applicant leave to re-file with the Board if he so desires, after he exhausts other remedies.

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:

a. by declaring the applicant’s 1 May 1997 honorable discharge null and void; and reinstating the applicant on active duty in pay grade E-6 without any loss of creditable service and with restoration of all rights and privileges, including all appropriate back pay and allowances;

b. by showing that he served continuously from 1 May 1997 until his reenlistment on 25 February 2000;

c. by inserting an appropriate nonprejudicial statement explaining the absence of evaluation reports in the applicant’s records between May 1997 and February 2000;

d. that following administrative implementation of the foregoing, his records be submitted to duly constituted special selection boards for any promotions/schools he would have been considered for had he not been separated; and

e. that, if he is selected for promotion, he be promoted and assigned an appropriate date of rank, or if selected for schooling that he be permitted to attend the next regularly scheduled class.

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

BOARD VOTE:

__SLP __ ___SK __ __EJA___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Shirley L. Powell______
                  CHAIRPERSON

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INDEX

CASE ID	AR2001059258
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020319
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	128.00
2.	128.10
3.
4.
5.
6.