MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:



                  BOARD DATE: 23 OCTOBER 2003
                  DOCKET NUMBER: AR2003088901

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur A. Omartian		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 his debt to the government be forgiven, and that money taken from him thus far to satisfy that debt be returned to him.

APPLICANT STATES: That his pay was garnished while he was on the TDRL (temporary disability retired list), to satisfy the provisions of 10 USC, 1174 (h); however, he suffered an injustice because he was medically retired after 16 years of service. He went back on active duty with 14 years of service. Had he completed his tour he would have had only 17 years of service. When he was placed on the TDRL, the special separation bonus (SSB) that he received was taken from him. He was aware that if he retired, his pay would be garnished; however, he was medically retired. He was forced to seek a lower disability rating in order to stop the garnishment.

He went back on active duty knowing that if he remained on active duty for 20 years he would have to pay back the SSB that he received in 1992. He did not foresee that he would suffer a misdiagnosis by an Army doctor, causing permanent physical damage; consequently, he was placed on the TDRL because of injuries sustained because of a delay in his treatment. He states in effect, that he was 100 percent disabled and received 75 percent of his base pay. The Defense Finance and Accounting Service then garnished $1500.00 of $1720.00, which, although in accordance with the law, was unfair. The garnishment has caused him a serious financial hardship. In order to stop the garnishment, he had to plead with the Physical Evaluation Board (PEB) for a disability rating of 10 percent, vice 30 percent.

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

The applicant's DD Form 214 shows that he was discharged from the Army in the rank of sergeant on 1 May 1992, and transferred to the Army Reserve Control Group (Reinforcement) at St. Louis. He had 13 years, 1 month, and 19 days of service. He was discharged under the provisions of Army Regulation 635-200, paragraph 16-8, and he received a SSB of $34,906.33. On 2 May 1992 he enlisted in the Army Reserve for 3 years.

On 27 January 1995 the applicant transferred from the Army Reserve Control Group (Reinforcement) to a Reserve engineer company in Pueblo, Colorado. An NCO evaluation report ending in January 1999 shows that he was assigned to an engineer detachment troop program unit at Fort Carson, Colorado.

The applicant's summary of his retirement points show that he was a member of the Reserves after his discharge in May 1992; however, not attaining a qualifying year for retirement at age 60 until his transfer to a troop program unit in 1995. That summary shows that for the retirement year ending on 3 May 2000 the applicant served on active duty for 366 days.

Information maintained on the applicant at St. Louis indicates that he entered on an AGR (Active Guard/Reserve) tour of duty on 4 October 1998, that he reported to a unit in Rockford, Illinois, went on permissive TDY (temporary duty) to his home in Colorado, apparently became ill, and remained in Colorado pending a medical board. The PEB placed the applicant on the TDRL effective 25 October 2000. That date was changed to 16 September 2000.

On 19 April 2002 the DFAS at Cleveland informed the applicant that in accordance with 10 USC 1174(h), a percentage of his retirement pay would be collected each month until the total amount of the SSB paid to him was recouped. The DFAS indicated that it would begin the collection from his monthly retired pay in the amount of $1,535.30 during the month of May 2002 and that the monthly collection would be recomputed each time his gross retired pay entitlement changed.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 16-8 of that regulation concerns early separation due to reduction in force, strength limitations, or budgetary constraints, and states, in effect, that when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced, the Secretary of the Army, or his designee, will authorize voluntary or involuntary early separation. The Commander, Total Army Personnel Command (PERSCOM) will implement this program by issuing separation instructions pertaining to a specific class or category of soldiers. Early separation under this paragraph is for the convenience of the government. Personnel separated under this paragraph will be discharged or released from active duty, as appropriate.

In late 1991 and early 1992 the PERSCOM announced implementing instructions for the FY 92 enlisted voluntary early transition program and provided for the voluntary release from active duty for specific categories of soldiers with monetary incentives authorized. One of these incentives was a SSB, a lump sum payment equal to 15 percent of the soldier’s basic monthly pay, multiplied by 12 and multiplied again by the soldier’s years of service. Soldiers approved for SSB must enter into a written agreement to serve in the Ready Reserve for a period of not less than three years. Soldiers who receive SSB and who subsequently qualify for retired/retainer pay shall have deducted from their retired pay a proportionate amount based on the service for which SSB was received. Recoupment will be deducted from each payment of retired pay until the total amount deducted is equal the total amount of SSB received.

The Department of Defense Financial Management Regulation, paragraph 040602, states in pertinent part, "If a member who 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. …"

10 USC 1174 (h)(1) states that a member who receives separation pay and who later qualifies for retired pay shall have deducted from the retired pay so much of such pay as is based on the service for which a Soldier received separation pay until the total amount deducted is equal to the total amount of separation pay received.

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. Evidence concerning the applicant's disability and the circumstances thereof are not available to the Board; however, the applicant states that he is on the TDRL. Information maintained on the applicant at St. Louis confirms his TDRL status.

2. The applicant himself states that the recoupment of his SSB is in accordance with the law; however, is unfair. It appears that he feels that the law is unfair because of the measures taken to comply with the law by taking money out of his pocket. He has, however, not shown to this Board that the law is unfair or unjust.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. 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 that requirement.

5. 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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JHL __ __MKP__ __AAO __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088901
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031023
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.10
2.
3.
4.
5.
6.