RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: JANUARY 22, 2004
         DOCKET NUMBER: AR2003090709


         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:

Ms. Joann Langston		Chairperson
Mr. Ronald J. Weaver		Member
Mr. Arthur a. Omartian		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that he receive separation pay and benefits for his service.

2. The applicant states that he never received any separation pay or benefits for his service.

3. The applicant provides a copy of his report of separation (DD Form 214), his separation orders and a copy of a letter from the Transition Assistance Management Program (TAMP) Task Force.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error which occurred on 8 July 1991. The application submitted in this case is dated 25 April 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted in Miami, Florida, on 20 October 1982, for a period of 3 years and training as a tactical wire operations specialist. He completed his training and was transferred to Fort Riley, Kansas, where he remained until he was transferred to Germany on 12 May 1984. He remained on active duty through a series of continuous reenlistments and extensions and was advanced to the pay grade of E-4 on 1 March 1986.

4. He voluntarily requested a consecutive overseas tour in Germany beginning on 29 January 1988. He was promoted to the pay grade of E-5 on 1 February 1990.

5. On 11 May 1990, nonjudicial punishment was imposed against him for driving while impaired. His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay (suspended for 6 months), extra duty and restriction (suspended for 6 months).

6. He was deployed to Southwest Asia in support of Operation Desert Shield/Storm from 18 December 1990 through 8 May 1991 and was involuntarily extended in the service for the convenience of the government.
7. On 8 July 1991, he was honorably discharged on the expiration of his term of service in the pay grade of E-4. He had served 8 years, 8 months and 19 days of total active service and was issued a separation code of "JBK." Neither his orders or the DD Form 214 issued to the applicant at the time indicate that he was authorized separation pay or benefits. His records do indicate that he was ineligible to reenlist by virtue of his grade and time in service. He was given a Reentry Code of "3C."

8. The TAMP letter provided by the applicant provides an overview of General Transition Benefits and Involuntary Separation Benefits. Some of the benefits included were pre-separation counseling, employment assistance, relocation assistance, health care for 120 days, commissary and exchange privileges for 2 years and separation pay, provided the soldier met the five requirements.

9. Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay. It states, in pertinent part, that soldiers denied continuation on active duty under established retention control point (RCP) provisions and separated at ETS are authorized full separation pay. The maximum RCP for personnel serving in the pay grade of E-4 was 8 years of AFS.

10. Army Regulation 635-5-1 implements Department of Defense (DOD) policy for standardization of entries on the DD Form 214 and provides the separation codes to be used and the authorities and reasons for their usage and control. It states, in pertinent part, that enlisted soldiers denied continued service who are separated at ETS will receive separation code “JBK” and an RE code of “3”.

11. Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by Department of Defense Instruction 1332.29 dated 20 June 1991 and other Department of the Army guidance resulting from Public Law 101-510. The circular also illustrates the various types of separation that are either eligible or ineligible for separation pay. It states, in pertinent part, that separation pay is authorized for soldiers serving on active duty on 5 November 1990 who were involuntarily separated prior to completion of obligated service or who were denied continuation of further service. To be eligible for separation pay and benefits, individuals must have served 6 or more years of active Federal service and had to sign a Department of the Army Form 7154-R (Agreement to Join Ready Reserve) for a period of not less than 3 years.






DISCUSSION AND CONCLUSIONS:

1. The evidence of record clearly shows that once the applicant was reduced to the pay grade of E-4, he had served until he reached the maximum RCP for his grade and was ineligible to reenlist. Accordingly, he was involuntarily discharged.

2. However, the evidence of record shows no indication that the applicant was afforded any benefits, separation pay, or the opportunity to affiliate with the Ready Reserve, in order to qualify for separation pay.

3. While most transition benefits that the applicant would have received were short-term benefits with expiration periods that would afford a smoother transition to civilian life, such is not the case with separation pay. The evidence of record suggests that it would be in the interest of justice to afford the applicant full separation pay for his honorable service.

4. As a condition of receiving separation pay, the applicant was required to agree to serve in the Ready Reserve or show that he was otherwise denied enlistment. While it would have been appropriate at the time to do so because the applicant would not have had to attend training, the evidence suggests that after 12+ years that have elapsed and the fact that the applicant is now 40 years of age, it would also be in the interest of justice to grant the applicant an exception to policy by not requiring him to serve in the Ready Reserve as a condition of receiving separation pay.

BOARD VOTE:

jl___ __ aao_____ rjw_____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he is entitled to full separation pay, and that he is, as an exception to policy, not required to serve in the Ready Reserve as a condition of qualifying for separation pay benefits.


2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to additional separation/transition benefits.





                  ____Joann Langston____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090709
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040122
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. 291	128.0800/sep pay
2.
3.
4.
5.
6.