PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 March 2003
         DOCKET NUMBER: AR2002078132


         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Ted S. Kanamine		Member
Ms. Shirley L. Powell		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 he be paid separation pay for his service.

3. The applicant states, in effect, that he was twice nonselected for promotion to the rank of major and was offered selective continuation on active duty. He declined selective continuation and as a result, his separation was deemed to be voluntary and he was denied separation pay. He goes on to state that he has subsequently received information which indicates that his separation was involuntary and that he may be entitled to separation pay.

4. The applicant’s military records show that he was commissioned as a United States Army Reserve (USAR) second lieutenant on 5 June 1987. He was ordered to active duty on 25 June 1990 and was promoted to the rank of first lieutenant on 28 June 1990. He was promoted to the rank of captain on 1 November 1992.

5. The applicant was nonselected for promotion to the rank of major for the second time by the Fiscal Year 1999 Majors Promotion Selection Board. However, he was offered selective continuation on active duty for a period of 3 years.

6. The applicant declined to accept selective continuation and on 1 January 2000, the Total Army Personnel Command (PERSCOM) dispatched a message to the applicant's command directing that the applicant be released from active duty (REFRAD) no later than 1 April 2000. The message also directed that he receive no separation pay because his separation was deemed to be voluntary when he declined selective continuation.

7. Accordingly, he was honorably REFRAD on 1 April 2000. He had served 10 years and 24 days of total active service and was transferred to a USAR Troop Program Unit in Richmond, Virginia. He was promoted to the rank of major on 4 August 2001.

8. In a previous case that is identical to the applicant's and in which the Board granted relief, a staff advisory opinion was obtained from the PERSCOM which opined that the applicant was twice non-selected for promotion to the rank of major during Fiscal Year (FY) 1999, the first year that selective continuation boards was authorized for captains. Prior to FY99, captains who became twice non-selected for promotion were involuntarily separated and were authorized to receive separation pay. With the initiative of selective continuation boards, the applicant was selected for continuation when the applicable laws provided that other than Regular Army officers (OTRA) who declined continuation on active duty were considered voluntary separations and thus were not entitled to separation pay. However, RA officers could decline selective continuation and receive separation pay. Congress addressed this inconsistency by modifying the law through the FY01 National Defense Authorization Act (NDAA) to apply the same rules regarding separation benefits to both RA and OTRA officers. Accordingly, captains who declined selective continuation the following year after the applicant’s separation were authorized separation pay.

9. Information received from the PERSCOM promotions branch indicates that after the results of the FY99 SELCON for captains was released, 104 officers accepted the offer of SELCON and 158 officers declined.

10. MILPER Message Number 99-068 announced the zones of consideration for the FY99 Major, Army Competitive Category Promotion Selection Board. The message provided the zones of consideration for captains who were eligible for consideration for promotion to the rank of major. It also provided specific instructions regarding what officers should do to prepare their records for review by the selection board and their right to submit correspondence to the president of the board. It also informed them that the FY99 NDAA incorporated new changes to the law which provides that an officer twice nonselected for promotion to the next higher grade is not entitled to separation pay if the nonselections resulted from an officer who requested in writing not to be selected for promotion or who otherwise directly caused nonselection through written communication to the board.

11. MILPER Message Number 00-078 announced the zones of consideration for the FY00 Major, Army Competitive Category Promotion Selection Board. It includes the same information as MILPER Message Number 99-068 and included a notification paragraph which informed the eligible officers that a Selective Continuation (SELCON) Board might be conducted to allow captains not selected for promotion to remain on active duty.

12. Title 10, United States Code, section 1174, provides the authorization for separation pay to officers who are involuntarily separated from the service. The law in effect at the time provided in pertinent part, that RA officers who declined continuation on active duty were entitled to receive separation pay; however, OTRA officers who declined selective continuation were deemed to be voluntarily separating and were not entitled to separation pay. Effective 30 October 2000, section 508 of the FY01 NDAA modified section 1174 to allow OTRA officers to decline selective continuation and receive separation pay for involuntary separation.

13. Nondisability Separation Pay authority is provided for in Title 10, United States Code, Section 580. It provides, in pertinent part, that the purpose of nondisabilty separation pay is to provide a lump-sum payment to Regular and Reserve officers involuntarily discharged or released from active duty short of retirement eligibility, either because of failure of selection for promotion, substandard performance of duty, misconduct, or moral or professional dereliction, or because the retention of such officers is not consistent with the interests of national security. The separation pay is a contingency payment for an officer who is career committed but to whom a full military career may be denied. It is designed to encourage him to pursue his service ambition, knowing that if he is denied a full career under the competitive system, he can count on an adequate readjustment pay to ease his reentry into civilian life.

CONCLUSIONS:

1. While the Board recognizes that the applicant was properly separated in accordance with the applicable laws and regulations in effect at the time and that he was properly denied separation pay based on his decision to accept separation without the benefit of separation pay, in lieu of accepting selective continuation on active duty, there appears to an issue of equity involved in the applicant’s case and possibly others in similar circumstances.

2. The Board finds that had the decision not to implement selective continuation occurred, there would be no issue in this case because the applicant would not have had to decline selective continuation for a 3-year period that would not take him to retirement eligibility nor would it have any guarantees that he would be selected for promotion.

3. The Board also notes that the Department recognized the inconsistency of the law where it afforded RA officers separation pay when they declined selective continuation and yet denied OTRA officers the same benefits. Accordingly, the law was amended 7 months after the applicant separated and amounted to a 1-year gap of officers who were denied involuntary separation pay when other officers who separated both before and after them had received separation pay for their service to their country. It is apparent to the Board that the Department attempted to rectify the injustice but simply failed to address the issue of those who had been treated unfairly by not requesting the amendment of law incorporate those individuals concerned.

4. The Board recognizes that in previous years, SELCON Boards were normally held for those grades in which officers had sufficient service to meet retirement eligibility if SELCON was offered and served. However, because the officers concerned were at the mid-point in their careers, SELCON could not take them to retirement eligibility and required some very difficult decisions by the officers affected. It appears to the Board that the gap in coverage between when the law was changed to afford OTRA officers separation pay and when the affected officers separated was unintentional; therefore, action should be taken to ensure that the affected officers are treated as their fellow officers were treated both prior to and subsequent to their separation.
5. Accordingly, the Board finds that as a matter of equity and justice, the applicant should be granted full involuntary separation pay as an exception to the law and policies in effect at the time.

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

RECOMMENDATION: That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was involuntarily separated and was entitled, as an exception to policy, to full involuntary separation pay due to his being twice non-selected for promotion.

BOARD VOTE:

___tsk __ __slp____ __sac___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Samuel L. Crumpler___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002078132
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/11
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 338	136.000/SEP PAY
2.
3.
4.
5.
6.