RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 May 2007
DOCKET NUMBER: AR20060014019
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.
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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 his severance pay be returned to him or that it not be recouped.
2. The applicant states, in effect, that he received severance pay in 1990 and he was retired by reason of physical disability on 26 January 2006. He goes on to state that he has applied to the Department of Veterans Affairs (VA) for disability compensation and has been informed that his severance pay is being recouped. He further states that it is unjust to require repayment of severance pay before being able to receive VA compensation for injuries that occurred in service to the country.
3. The applicant provides copies of his retirement documents.
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned as a United States Army Reserve second lieutenant in the Medical Service Corps on 14 May 1978 and entered active duty on 6 October 1978. He was promoted to the rank of captain on 1 August 1982.
2. He remained on active duty until 1 September 1990, when he was released from active duty (REFRAD) due to failure of selection for permanent promotion. He had served 11 years, 10 months and 26 days of active service and was paid $30,000.00 in separation pay. He was transferred to a USAR Troop Program Unit and was promoted to the rank of major on 24 February 1992. He was promoted to the rank of lieutenant colonel on 30 May 1997.
3. On 17 June 1998, he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
4. On 30 September 2004, a Physical Evaluation Board (PEB) convened and determined that the applicant, who was serving on a temporary tour of active duty, was physically unfit and recommended that he be placed on the temporary disability retired list (TDRL) with a 30% disability rating. He was placed on the TDRL on 23 December 2004.
5. On 15 December 2005, a PEB convened in Washington, D.C. and determined that he should be permanently retired by reason of physical disability with a 30% disability rating. The applicant concurred with the PEB findings and recommendations and on 24 January 2006, he was permanently retired by reason of physical disability with a 30% disability rating.
6. Title 10, United States Code, Section 1174 (h), provides in pertinent part, that a member who has received separation pay under this section, or separation pay, severance pay, or readjustment pay under any other provision of law based on service in the in the armed forces, and who later qualifies for retired or retainer pay under this title or title 14, shall have deducted from each payment of such retired or retainer pay so much of such pay as is based on the service for which he or she received separation under this section or separation pay, severance pay, or readjustment pay under any other provision of law until the total amount deducted is equal to the total amount pf separation pay, severance pay and readjustment pay is received. A member who has received separation pay under this section, or severance pay or readjustment pay under any other provisions of law, based on service in the armed forces shall not be deprived, by reason of his or her receipt of such pay, of any disability compensation to which he or she is entitled under the laws of the Department of Veterans Affairs, but there shall be deducted from that disability compensation an amount equal to the total amount of separation, severance or readjustment pay received.
DISCUSSION AND CONCLUSIONS:
1. The purpose of Title 10, United States Code, Section 1174 (h) is apparently to eliminate receipt of double benefits for the same period of service.
2. While the Board understands the applicants concerns, recoupment of separation/severance pay when an individual later qualifies for retired pay or disability compensation is a requirement of law.
3. The applicants contentions have been noted; however, to grant his request would afford him a benefit that is not afforded to others in similar circumstances and he has failed to show through the evidence submitted or the evidence of record that he should receive special consideration in this matter. Accordingly, there appears to be no basis for granting 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 the aforementioned requirement.
5. In regards to his issue regarding the actions of the VA, the Board has no authority or jurisdiction over that agency. Accordingly, any issues he has with that agency should be dealt with through that agency.
6. In arriving at its decision, the Board wants the applicant to know that the decision of the Board in this case in no way diminishes the quality of his service to our Army and our Nation. The applicants dedicated service and his performance in the Regular Army to meet the needs of the Service demonstrated the finest traditions of the Officer Corps and should be a source of pride to the applicant.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x__ __x__ __x___ 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.
_____x_________
CHAIRPERSON
INDEX
CASE ID
AR20060014019
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070501
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 1.128.0800
291/SEV PAY
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