RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 8 March 2007
DOCKET NUMBER: AR20060009757
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. Gerard W. Schwartz | |Acting Director |
| |Mrs. Nancy L. Amos | |Analyst |
The following members, a quorum, were present:
| |Mr. William F. Crain | |Chairperson |
| |Mr. Edward E. Montgomery | |Member |
| |Ms. Rea M. Nuppenau | |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 he be repaid his separation pay.
2. The applicant states that his separation pay was taken back by
withholding his disability compensation. Therefore, he did not receive
separation pay. He states he discovered this error on 11 March 1994.
3. The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); his separation orders; and a 12 December 1994
letter from the Defense Finance and Accounting Service.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice
which occurred on 11 March 1994, the date he discovered his separation pay
was being recouped. The application submitted in this case is dated 15
June 2006.
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. After having had prior service, the applicant enlisted in the Regular
Army on 27 August 1986. On 30 August 1992, he was honorably discharged
upon his expiration of term of service. His DD Form 214 shows he was
authorized separation pay in the amount of $9,242.63.
4. The applicant apparently began receiving Department of the Veterans
Affairs (DVA) disability compensation, and his separation pay was collected
as a debt to the Government.
5. Title 10, U. S. Code, section 1174 (Separation pay upon involuntary
discharge or release from active duty), subsection (h)(2), states a member
who has received separation pay under this section shall not be deprived,
by reason of his
receipt of such separation pay, of any disability compensation to which he
is entitled under the laws administered by the DVA, but there shall be
deducted from that disability compensation an amount equal to the total
amount of separation pay received, less the amount of Federal income tax
withheld from such pay.
DISCUSSION AND CONCLUSIONS:
1. The applicant’s contentions have been considered. However, once he
became entitled to receive DVA disability compensation the law required
that the amount of the separation pay he received to be deducted from his
disability compensation. There was no error or injustice.
2. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 March 1994; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 10 March 1997. The applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__wfc___ __eem___ __rmn___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that 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.
2. As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations
prescribed by law. Therefore, there is insufficient basis to waive the
statute of limitations for timely filing or for correction of the records
of the individual concerned.
__William F. Crain____
CHAIRPERSON
INDEX
|CASE ID |AR20060009757 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20070308 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Schwartz |
|ISSUES 1. |128.00 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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