RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 August 2005
      DOCKET NUMBER:  AR20040010288


      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. David S. Griffin              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he receive the full amount of
severance pay, $41,613, that the Physical Evaluation Board Liaison Officer
(PEBLO) estimated  he would receive instead of the amount, $18,915, that
was computed by the Defense Finance and Accounting Service (DFAS).

2.  The applicant states, in effect, that:

      a.  the PEBLO told the applicant and his wife that all of the
applicant's service (including inactive) was used in the computation of his
severance pay;

      b.  he only concurred with the findings of the Physical Evaluation
Board (PEB) based on his receiving the $41,613 in severance pay;

      c. he would not have signed the PEB findings if he had known the
severance pay would only be $18,915;

      d.  he received nearly $25,000 less than he was told he would
receive;

      e.  the PEBLO's mistake on the PEBLO Estimated Disability
Compensation Worksheet is not the fault of the applicant and that it is
inequitable and unjust for him to not receive the full amount that was
promised to him on the PEBLO Estimated Disability Compensation Worksheet.

3.  The applicant provides:

      a.  a letter from his spouse wherein she states that, in effect, that
her husband was told he was to receive $41,613 in severance pay and that
they had planned to pay off debts and loans and start over in the civilian
world.  She also stated that the PEBLO assured them that her husband's
inactive service would be included in the computation of his severance pay.
 She further stated that if they had been given an estimate of $18,915 her
husband would have appealed the PEB decision;

      b.  an undated letter from Headquarters, U.S. Army Medical Department
Activity, Fort Benning, Georgia that notified the applicant's commander
that the applicant was being referred to a PEB;

      c.  a Texas Physical Evaluation Board (PEB) Fact Sheet that assists
Soldiers in understanding the physical disability evaluation system
process;

      d.  a copy of DA Form 3349 (Physical Profile), dated 8 April 2004,
that assigned the temporary numerical designator 3 under S-psychiatric of
PULHES.  The Profile also stated that the applicant cannot be assigned
where psychiatric care is not available;

      e.  a statement of service, dated 14 April 2004, prepared by Delta
Company, 3rd Soldier Support Battalion, 3rd Brigade, 3rd Infantry Division
(Mechanized), Fort Benning, Georgia that stated the applicant's period of
active service was from 27 September 1999 to the date of the statement;

      f.  a copy of an Enlisted Record Brief, dated 14 April 2004, that
showed the applicant's basic active service date (BASD) as 27 September
1999 and his pay entry base date (PEBD) as 31 October 1993;

      g.  a request for documents concerning the applicant from
Headquarters, U.S. Army Medical Department Activity, dated 3 May 2004, to
all record holders at Fort Benning;

      h.  a copy of a memorandum for the commander of Martin Army Community
Hospital, Fort Benning, George from the applicant's commander that stated
that the applicant was incapable of performing his duties in his military
occupational specialty (MOS) 92G (food service).

      i.  a copy of the proceedings of the PEB convened on 3 June 2004;

      j.  a copy of an undated and unsigned DA Form 5892-R (PEBLO Estimated
Disability Compensation Worksheet) that shows an estimated disability
severance pay amount of $41,613 based on $3,783 (sum of basic pay times
2 months) multiplied by 11 (years combined service);

      k.  a copy of a Separation Pay Worksheet, dated 29 July 2004, that
shows an estimated final payment of $16,930.46; and

      l.  a copy of the applicant's final Leave and Earnings Statement
(LES) provided by DFAS that shows the applicant's monthly basic pay as
$1,891.50; and

      m.  an undated letter, signed by the applicant and his spouse,
submitted through his Congressional representative that stated that the
applicant should receive the amount of disability pay he feels was promised
to him.  The letter also stated that the applicant's condition has gotten
worse since his discharge and that he is "not unable to return to the
workforce."

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he initially enlisted in the
U.S. Marine Corps on 16 June 1998.  He received a hardship discharge on 19
July 2000.  He had served 2 years, 1 month and 4 days of active service
characterized as honorable. The applicant's DD Form 214 (Certificate of
Release or Discharge from Active Duty) with a separation date of 19 July
2000 shows that he had 7 days of prior inactive service.

2.  The records show the applicant enlisted in the U.S. Army on 31 October
2001 for a period of 3 years.

3.  In Item 11 (Your Military History) of the applicant's Security
Clearance Application, dated 25 September 2001, the applicant entered his
period of service from 16 June 1998 through 12 July 2000 in the Marine
Corps.  There were no other periods of service listed.

4.  On 10 November 2003, the applicant reenlisted in the U.S. Army for a
period of 4 years.

5.  On 3 June 2004, a PEB found that the applicant was unfit for duty due
to  "Posttraumatic Stress Disorder requiring psychotropic medication and
outpatient therapy.  Hospitalization not indicated. Rated as mild social
and industrial impairment . . ."

6.  The PEB recommended a combined rating of 10 percent and that the
applicant be separated with severance pay if otherwise qualified.

7.  On 8 June 2004, the applicant concurred with findings and
recommendations of the PEB and waived a formal hearing of his case.

8.  On 30 July 2004, the applicant was discharged due to disability with
severance pay.  The applicant had served 2 years and 9 months of active
service characterized as honorable.

9.  The applicant's separation orders were not available for the Board to
review.

10.  Army Regulation 635-40 provides that a soldier may be separated with
severance pay if his or her disability is rated at less than 30 percent;
if he or she has less than 20 years of service as defined in 10 United
States Code (USC) 1208  [RC soldiers not on extended AD use 10 USC 12733
for computations], if his or her disability occurred in the line of duty,
and is the proximate result of performing active duty or IDT.
11.  Army Regulation 635-40 provides that the PEBLO, in all informal cases,
will provide the Soldier with a DA Form 5892-R as an estimate only
(emphasis added) of disability compensation.

12.  Department of Defense (DOD) Financial Management Regulation 7000.14-R
provides all DoD components with the policy, regulation, and procedures
within the area of responsibility of the Comptroller, Department of
Defense.  Paragraph 350403 states that disability severance pay is computed
by multiplying the sum of basic pay for 2 months by the number of combined
years of active service and inactive duty for training (but not over 12).
The regulation also states that the member's separation orders will specify
the total combined years of active service and inactive duty for training
to be counted in computing severance pay.  The total will be rounded to the
nearest whole year, with 6 months or more rounded up.

13.  Paragraph 350404 of this regulation provides that disability severance
pay is exempt from Federal taxation if the pay is based on a disability
resulting from a combat-related injury.  Combat related is defined as an
injury that was a direct result of armed conflict, incurred while engaged
in extra hazardous service (flight, parachute or demolition duty) or
incurred under conditions simulating war (live fire exercises).

14.  Title 38, United States Code, permits the Department of Veterans
Affairs (DVA) to award compensation for disabilities which were incurred in
or aggravated by active military service.  The DVA can evaluate a veteran
throughout his or her lifetime, adjusting the percentage of disability
based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should receive the full amount of
disability severance pay that he feels was promised to him by the PEBLO and
that if he had known the amount would be $18,915, he would not have
concurred with the PEB's findings and recommendations.

2.  There is no evidence available that shows the applicant had any service
prior to 1998.  The number of years combined active service used in
computing the estimated disability severance pay was 11.  Therefore, it is
reasonable to assume that the applicant would have known that he did not
have 11 years combined active service when reviewing the DA Form 5892-R.

3.  The regulation and the form itself specifically state that the amount
of severance pay indicated on the DA Form 5892-R is an estimated amount
only.  Therefore, there is no evidence to support the applicant's
contention that he was promised a greater amount than he received.

4.  The Comptroller General of the United States has ruled in similar cases
that although a service member may have been misinformed about his
entitlements, the Government is not liable for erroneous actions of its
officers, agents, or employees in the performance of their official duties.


5.  The applicant did not submit any medical evidence that would indicate
that if he had not concurred with his informal PEB, a formal PEB would have
arrived at different findings and recommendations than the informal PEB.

6.  The applicant has not submitted any evidence which would show that his
disability was not properly rated in accordance with the VA Schedule for
Rating Disabilities.  His separation with severance pay was in compliance
with law and regulation.

7.  In order to justify correction of a military record the applicant must,
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.

8.  If the applicant has evidence of additional active service or inactive
duty for training that was not previously available, he should provide that
evidence to DFAS for possible re-computation of his disability severance
pay.

9.  The applicant contends that his service connected disability has
increased. Disabilities which occur or which worsen after a Solder is
separated are treated by and compensated for by the DVA.  Any claims or
issues concerning treatment or compensation for service connected
disabilities should be addressed to that Agency.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___mhm_  ____jbg__  ____jtm__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  __________Melvin H. Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010288                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050816                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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