MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 November 2002
         DOCKET NUMBER: AR2002073572

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Donald P. Hupman		Member
Mr. Thomas B. Redfern		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: That her effective date of retirement be changed from "1 September 2000" to "1 September 1999", and that her retirement orders be corrected to show her date of birth (DOB) as "3 August 1955" instead of "3 March 1955."

APPLICANT STATES: That she completed 20 years of active duty service in September 1999; however, her retirement orders show 1 September 2000. She
submitted her request in 1999; however, it took over a year to process. Her DOB was incorrect on her retirement orders. In support of her application, she submits
copies of her: DA Form 4187 (Personnel Action); DD Form 214 (Certificate of Release or Discharge from Active Duty); birth certificate; retirement orders; and a copy of her statement of retirement points.

She states that her original request for retirement was lost in October 1999, and after months in pursuit, orders were finally published on 28 August 2000, with an effective date of 1 September 2000. She also states that she did not receive her retirement pay until January 2001 due to the loss of her application. Her pay was garnished to recoupe SSB. After further attempts, she discovered that the Defense Finance and Accounting Service (DFAS) had purged her records of debt, which she is still paying.

She presented her matters to the Inspector General (IG) and consulted with her congressman for recommendations. She concludes that continuing delays have caused her financial hardship during this duration and that a rapid response would save her further complications.

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

On 20 March 1979, she enlisted with prior military service. She continued to serve until she was honorably separated from active duty in the pay grade of
E-6 on 30 March 1995, under the provisions of Army Regulation 635-200, chapter 16, Early Release Program – Special Separation Benefit (SSB). She completed a total of 19 years, 10 months, and 26 days of creditable service. She was transferred to the USAR Control Group (Reinforcement). She received an SSB payment in the amount of $47,000. The applicant enlisted in the USAR for a period of 3 years prior to her separation.

On 23 September 1999, the applicant submitted her request for retirement under Title 10, United States Code, section 3914.

The applicant provided a copy of her Chronological Statement of Retirement Points which shows that she had completed 21 years of qualifying service for retirement purposes.


The applicant provided a copy of her retirement orders, effective 1 September 2000, which show that she completed 20 years and 8 days of total active service. Her orders also show her DOB as "3 March 1955" and that she was in receipt of SSB payment. The birth certificate provided by the applicant shows that she was born on 3 August 1955.

The National Defense Authorization Act of Fiscal Year 1992 established two monetary Voluntary Separation Incentive Programs (VSIP) to assist in maximizing voluntary separation during the drawdown period of military forces. One incentive program was called the Voluntary Separation Incentive (VSI) which paid an annual annuity payment equal to 2.5 percent of the soldier’s annual basic pay at separation multiplied by this number of years of service and paid for twice the number of years the soldier had served at the time of separation. The other incentive program was called the Special Separation Benefit (SSB) which paid a lump sum equal to 15 percent of the soldier’s annual basic pay. Soldiers who apply for SSB are required to enter into a written agreement to serve in the Ready Reserve for a period of not less than 3 years,
in addition to any remaining military service obligation based in statue, following separation from active duty. Soldiers who receive SSB and who subsequently serve on active duty, Reserve duty in a pay status, or inactive duty for training shall not forfeit any SSB or compensation received. Soldiers who have receive SSB and who subsequently qualify for retired pay shall have deducted from their retired pay a proportionate amount based on the service for which the SSB was received. Recoupment will be deducted from each payment of retired pay until the total amount deducted is equal to the total amount of SSB received.

Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 35, paragraph 350703, subparagraph A, states: “A deduction shall be made from a member who has received an SSB, and who later qualifies for retired or retainer pay. The deduction shall be a portion of such retired or retainer pay until an amount equal to the gross amount of such SSB has been deducted.

Volume 7B, Chapter 4, paragraph 040602, subparagraph A, states: "If a member has received an SSB payment becomes eligible for retired pay, recoup from the member the gross amount of SSB received, as shown on the member's DD Form 214."








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 evidence of record shows that the applicant was honorably separated with entitlement to SSB and enlisted in the USAR. She requested retirement on 23 September 1999.

2. The Board notes that the applicant stated that her request was lost in October 1999 and that orders were finally published with an effective date of 1 September 2000. She states that she did not receive her pay until January 2001, which was garnished to recoup SSB and that DFAS had purged the records of her debt.

3. In accordance with the National Defense Authorization Action, the applicant
received SSB and continued to served on Reserve duty in a pay status without forfeit of her SSB. However, the applicant later submitted a request for retirement after completion of 20 years of active duty service. Regulation states that her deduction would be a portion of her retired pay until an amount equal to the gross amount of such SSB had been deducted.

4. The Board notes that the applicant's orders for retirement show an incorrect DOB, which will be administratively corrected.

5. There is no information in the available records or provided by the applicant that her request for retirement was mishandled or unduly delayed. There is no basis to change the applicant's retirement date and there is no regulation in effect to show that the established retirement date should be changed to show a retroactive date.

6. 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.












7. 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.

NOTE: The Army Review Boards Agency – Support Division will be asked to administratively correct the applicant's retirement orders to reflect a DOB of 3 August 1955.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__ro___ ___dh_____ ___tr__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073572
SUFFIX
RECON
DATE BOARDED	20021107
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20000901
DISCHARGE AUTHORITY	AR .635-200/3914
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 338
2.
3.
4.
5.
6.