RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            04 APRIL 2006
      DOCKET NUMBER:   AR20050005447


      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. James Anderholm               |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Ms. Jeanette McCants              |     |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 that his report of separation (DD Form 214) be
corrected by deleting any reference to separation pay.

2.  The applicant states, in effect, that his DD Form 214 incorrectly
reflects that he received $22,197.24 in separation pay; however, he never
received any separation pay and the Department of Veterans Affairs (VA) is
recouping his separation pay from his compensation payments.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 5 November 1991.  The application submitted in this case is
dated 28 March 2005.

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 limitations 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.  He enlisted in the Regular Army in San Juan, Puerto Rico on 17 October
1978 for a period of 3 years and training as a telecommunications center
operator.  He completed his one-station unit training at Fort Gordon,
Georgia, and remained on active duty through a series of continuous
reenlistments.  He was promoted to the pay grade of E-5 on 1 February 1990.

4.  On 3 December 1990, while serving in Saudi Arabia, he extended his
enlistment for a period of 9 months to reach the retention ineligibility
point for his pay grade.  His new expiration of term of service was
established as 5 November 1991.

5.  On 5 November 1991, he was honorably discharged in the pay grade of E-5
due to the expiration of his term of service (ETS).  He had served 13 years
and 19 days of total active service and was ineligible to reenlist due to
exceeding the retention ineligibility point for his grade (13 years).  He
agreed to serve in the United States Army Reserve for a period of 3 years
as a condition of receiving separation pay.  However, it was determined
that he did not qualify for Reserve Component affiliation.

6.  His DD Form 214 prepared at the time of his discharge indicates that he
was entitled to separation pay of $22,197.24.  However, his discharge
orders make no indication of his entitlement to separation pay.

7.  A review of the applicant’s records reveals the presence of a VA Form
     70-3101 (Request for Information) requesting to know the amount of
separation pay indicated on the applicant’s DD Form 214.  It also indicates
that the applicant states that he never received any separation pay.  The
inquiry was related to a claim for disability.

8.  In the processing of this case a staff advisory opinion was obtained
from the Defense Finance and Accounting Service (DFAS) – Denver.  Officials
at that agency indicate that the applicant’s records show that he was not
paid separation pay at the time of separation and that he was entitled to
receive it.  However, records at that agency also indicate that the Board
also acted on a request from the applicant in 1995; however, it could not
be determined what the nature of that request entailed.  Officials at that
agency further opined that it was possible that his claim in 1995 to the
Board was for the separation pay and since the applicant had not proved or
disproved his claim, it should be denied.  It should be noted that the
applicant’s application was interpreted by officials at the DFAS to be a
claim for payment of separation pay instead of having the separation pay
deleted from his DD Form 214.  The advisory opinion was forwarded to the
applicant for comment and to date no response has been received by the
staff of the Board.

9.  A search of historical records maintained by this Board has failed to
reveal any Board action being taken on a previous application pertaining to
the applicant.

10.  Department of the Army Circular 635-92-1 outlines the eligibility
criteria for separation pay.  It states, in pertinent part, that one-half
separation pay is authorized for soldiers who are not fully qualified for
retention and are denied continuation.  Soldiers who are eligible for
reenlistment/continuation and elect to separate on their ETS are not
authorized separation pay.

11.  Army Regulation 635-5-1 provides the separation codes and narrative
reasons for separation that are to be placed on the DD Form 214 at the time
of separation based on the circumstances surrounding the separation.  It
states, in pertinent part, that the separation code “JBK” will be used for
Regular Army enlisted personnel ineligible for, barred from, or otherwise
denied reenlistment who are separated on completion of enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he did not receive the separation pay
he was authorized appears to have merit.  Verification from the DFAS
indicates that he was not paid separation pay at the time of separation.

2.  A search of historical documents maintained by the Board has failed to
show that the Board authorized payment of his separation pay subsequent to
his discharge.

3.  Inasmuch as the applicant is receiving compensation from the VA and
since he has never been paid separation pay, it would be in the interest of
justice to remove all indication from his DD Form 214 that relate to
separation pay.

BOARD VOTE:

___JA___  ___JM __  ___JM __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for 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 removing all indications from the
remarks section of his DD Form 214 showing his entitlement to separation
pay in the amount of $22,197.24.





                            _____James Anderholm__________
                                      CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005447                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060404                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19911105                                |
|DISCHARGE AUTHORITY     |AR.635-200, CH 4                        |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |189/CORR 214                            |
|1.110.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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