MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 June 2002
         DOCKET NUMBER: AR2002069426

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

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. John T. Meixell		Member
Mr. Thomas E. O’Shaughnessy, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that the reason of his discharge and the Separation Program Designator (SPD) code assigned him, and listed in his separation document (DD Form 214), be corrected; and that he be authorized physical disability severance pay.

APPLICANT STATES: In effect, that based on his assigned SPD code he was only granted one-half separation pay based on 16 years of active duty service. He claims that he should have been separated by reason of physical disability with severance pay, and as a result the formula used for separation pay should have been two months basic pay for each year of service (not to exceed
12 years) for each year of service. In a letter to a Member of Congress the applicant included with his application, he claims that the formula used to compute his disability severance pay was in error. In support of his application, he provides a letter he submitted to his Member of Congress, a letter to his Member of Congress from the Defense Finance and Accounting Service (DFAS), Kansas City, Missouri, and other military discharge documents.

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

On 3 August 1992, the applicant was discharged from the Army after completing a total of 16 years and 24 days of active military service. At the time of his discharge, he held the rank and pay grade of staff sergeant/E-6 and the military occupational specialty (MOS) of 71L (Administrative Noncommissioned Officer).

On 5 May 1992, based on a request from the Physical Evaluation Board (PEB) Liaison Officer, Walter Reed Army Medical Center (WRAMC), Washington D.C., dated 1 May 1992, the Chief, Military Personnel Division (MPD), WRAMC, submitted a request that the applicant be granted a medical extension beyond his scheduled expiration of term of service (ETS) date due to continuous hospitalization and/or Medical Evaluation Board (MEB)/PEB processing.

On 5 May 1992, the applicant consulted counsel, and after being advised of the advantages and disadvantages of remaining on active duty beyond his scheduled ETS, he confirmed his desire to remain on active duty beyond his ETS.

On 8 May 1992, the Commander, WRAMC granted the authority to retain the applicant on active duty beyond his scheduled ETS of 6 May 1992, until 3 August 1992, or completion of his medical processing, whichever was sooner. There is no indication in the record that the medical evaluation the applicant underwent during this extension on active duty resulted in a determination that he was medically unfit for retention or that he should be processed for separation through medical channels.

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On 28 July 1992, Order Number 143-2 was published by Headquarters, WRAMC. This order directed the applicant’s reassignment to the Transition Point for transition processing. It also authorized his discharge, effective
3 August 1992, and contained additional instructions that indicated the applicant was entitled to one-half separation pay in accordance with Title 10 of the United States Code, section 1174 (10 USC 1174), based on 16 years, 0 months, and
29 days of active Federal service.

The separation document (DD Form 214) issued to and authenticated by the applicant with his signature on the date of his separation, 3 August 1992, contains an entry in Item 18 (Remarks) that shows he received separation pay in the amount of $15,030.46. Item 25 (Separation Authority) lists the authority for his discharge as chapter 3, Army Regulation 635-200 and Item 28 (Narrative Reason for Separation) verifies that the reason for his discharge was Expiration of Term of Service (ETS). Items 26 (Separation Code) contains an entry showing the assigned SPD code of JBK and the Item 27 (Reentry Code) entry contains the reentry (RE) code of RE-3, confirming that the applicant was ineligible to reenlist without a waiver.

On 11 February 2002, the Director, Military and Civilian Pay Services, DFAS, Kansas City, Missouri, replied to an inquiry from the applicant’s Member of Congress. In this reply, it was stated that members separated by reason of physical disability are entitled to severance pay if qualified, as prescribed by the personnel regulations of the military service concerned. However, there was no evidence to show the applicant was separated under these provisions or was authorized to receive disability severance pay. It further states, that when a member is entitled to disability severance pay, this entitlement is authorized in the separation orders. In the applicant’s case, his separation order specifies that he was entitled to one-half separation pay entitlement, not disability severance pay entitlement, based on being discharged on 3 August 1992, at his ETS, with an assigned SPD code that authorized only half separation pay.

10 USC 1174 contains the legal authority for the payment of separation pay upon involuntary discharge or release from active duty. It states, in pertinent part, that a member who is discharged involuntarily or as the result of the denial of the reenlistment and who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay unless the Secretary of the service concerned determines that the conditions under which the member is discharged do not warrant payment of such pay. The authority for disbursing payments of separation pay is contained in paragraph 3502 of the DOD Financial Management Regulation.

In compliance with 10 USC 1174, the Army established its policy and procedure for the payment of separation pay in Department of the Army (DA) Circular
635-92-1, which outlined the eligibility criteria for the payment of separation pay. Although this circular contained an expiration date of 1 August 1994, the Army separation pay policies and procedures established in it remain in effect. Paragraph 2-3 contained guidance on categories of separations that qualified for half separation pay. It stated, in pertinent part, that half payment of separation pay was authorized to soldiers who met the basic eligibility criteria for separation pay, who were not fully qualified for retention, and who were involuntarily separated at ETS.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 contains the policy and procedure for separating members as a result of a court-martial. Chapter 4 contains the policy and procedure for the separation of soldiers at the completion of their required service or ETS.

Army Regulation 635-5-1 (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This source confirms that the SPD code of JBK is the appropriate code to assign Regular Army soldiers separating under the provisions of chapter 4, Army Regulation 635-200, by reason of ETS, who were ineligible for, barred from, or otherwise denied reenlistment. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE-3 as the proper reentry code to assign to soldiers separated by reason of ETS, who were ineligible for, barred from, or otherwise denied reenlistment, with a SPD code of JBK.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s contention that he should have been provided separation pay based on the formula applicable to soldiers separating by reason of physical disability with severance pay. However, it finds insufficient evidence to support this claim.

2. The evidence of record shows that the applicant was extended beyond his normal ETS in order to undergo a medical evaluation. However, there is no indication that this evaluation resulted in a determination by medical authorities that he was medically unfit for service; that he should be processed for separation through medical channels; or that he should be separated by reason of physical disability with severance pay.

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3. The applicant’s DD Form 214 incorrectly lists a separation authority of chapter 3, Army Regulation 635-200, which only applies to soldiers separated by reason of court-martial. However, the evidence of record clearly establishes, as evidenced by his separation order and other separation documents, that he was separated by reason of ETS, under the provisions of chapter 4, Army Regulation 635-200, which should have been the separation authority entered in his separation document.

4. By law and regulation, members separated at the completion of their required service or ETS, who are ineligible, barred from, or otherwise denied reenlistment, are assigned a SPD code of JBK, and are authorized to receive one-half separation pay. Notwithstanding the administrative error in the separation authority listed in his DD Form 214, this document does contain an RE-3 code that confirms the applicant was ineligible for reenlistment without a waiver at the time of his discharge. Lacking independent evidence that confirms he should have been processed for separation through medical channels or discharged by reason of physical disability with severance pay, the Board concludes that there is insufficient evidence to grant the requested relief by authorizing a change to the reason for his discharge or the formula used for his separation pay.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

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DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE: The ARBA Support Division, St. Louis, is directed to make the following administrative correction to Item 25 (Separation Authority) of the 3 August 1992 DD Form 214 of the individual concerned: As Reads: “CHAP 3 AR 635-200” Change To: “CHAP 4, AR 635-200.” This administrative correction does not impact the Board’s decision not to grant the relief requested in this case.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_SK___ ___JTM__ __TEO____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002069426
SUFFIX
RECON
DATE BOARDED	2002/06/06
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1992/08/03
DISCHARGE AUTHORITY	AR 635-200 C4
DISCHARGE REASON	ETS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 283	128.0000
2.
3.
4.
5.
6.