RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070009312 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette McCants

Member

Mr. Scott W. Faught

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 be relieved of recoupment of his non-disability severance pay. 

2.  The applicant states, in effect, that he was honorably discharged from the Army on 31 January 1991, under the provisions of Army Regulation 635-120, chapter 9, due to non-selection for promotion.  At that time, he was paid a non-disability separation pay in the amount of $45,994.70.  He is now required to retire from the AGR (Active Guard Reserve) Program and discovered that under Title 10, United States Code (USC), Chapter 59, Section 1174(h)(1) it required the recoupment of his entire separation pay.

3.  He states that he considers the recoupment an injustice for three reasons:  (1) He did not accept an incentive to leave service, but rather fought to remain and has served well in the 13 years since this action occurred; (2) His non-selection was based on the lower selection rates of a period of force reduction, not for misconduct; and (3) The requirement is based on circumstances that no longer exist.  He states that the Army is now growing and no longer drawing down.  

4.  He adds that according to the DODFMR [Department of Defense Financial Management Regulation] (Table 1-4-2), an officer in his situation before 15 September 1981 would not be required to repay the severance pay.  DODFMR was changed in 1981 to reflect a changing time, and now should change again.  In the 13 years since this occurred, he has received 17 OERs (Officer Evaluation Reports), all center of mass or above.  He has been selected for promotion three times from Captain to Colonel.   He has received three Meritorious Service Medals and two Army Commendation Medals.  He has volunteered on at least five occasions for service overseas, to be told he was too vital to current operations to be allowed to go.  He has been board selected to attend the Defense Strategy Course and the Medical Strategic Leadership Program.  

5.  As an AGR officer, he has received three extensions for Active Federal Service (AFS) and has requested recall from retirement to continue serving.  After being released from the Army, he has fought his way back into active service, served well over 13 years, and is fighting to continue his service.  He now seeks relief from the effects of an outdated, misapplied policy based on the tenure, quality, and desire to continue his service to his country.  


6.  He also adds that he initially discovered the recoupment requirement in preparation for retirement.  His AFS was adjusted and he was allowed to remain. He was informed that legislation had been submitted to remove the recoupment for non-disability severance pay.  It has only been in the last 3 years that he has discovered that the law was not changed.

7.  The applicant provides copies of extracts from the DODFMR; two copies of DD Forms 214 (Certificate of Release or Discharge from Active Duty); and copies of several documents from his OMPF (Official Military Personnel File), in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was commissioned in the Regular Army as a second lieutenant (2LT/O-1) on 30 June 1982.  He was promoted to captain (CPT/O-3) effective 1 December 1985.  

2.  The applicant served until he was honorably released from active duty on  31 January 1994 under the provisions of Army Regulation 635-120, chapter 9, due to failure of selection for permanent promotion.  He had completed 11 years, 7 months, and 1 day of AFS.  He was paid $45,994.70 in separation pay.  He was transferred to a USAR (United States Army Reserve) TPU (Troop Program Unit).  

3.  The applicant was promoted to the rank of major (MAJ/O-4) effective   29 June 1994 and  promoted to the rank of lieutenant colonel (LTC/O-5) effective 22 November 2000.

4.  On 26 December 2002, the Army Reserve Personnel Command (AR-PERSCOM) notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

5.  The applicant was promoted to the rank of colonel (COL/O-6) effective 11 July 2005.

6.  The applicant provided evidence to show that he was granted three AFS extensions. 

7.  The applicant served until he was separated for the purpose of retirement on 31 August 2007.  He was placed on the Retired List effective 1 September 2007, in the rank and pay grade of COL/O-6.  
8.  The applicant provided copies of several OERs and awards that he received while serving on active duty.

9.  The applicant was voluntarily recalled to active duty on 1 September 2007 for 1 year to fulfill an active duty requirement.

10.  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 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 of 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. 

11.  DOD Financial Management Regulation, Volume 7B, Chapter 4, paragraph 0403 pertains to non-disability severance pay.  Paragraph 040301 states that before 15 September 1981, certain provisions of law governing separation from the active list required refund of severance pay upon a member's retirement.  Members who received severance pay on 15 September 1981, or later, and subsequently qualify for retirement are subject to recoupment.  

12.  Paragraph 040302 states that lump-sum severance pay must be recouped by deducting from retired pay each month an amount based on the service for which the severance pay was received until the total deducted equals the amount of the severance pay.  The member may refund the full amount by direct remittance to the serving finance activity or may authorize deduction in an amount greater than that required by law.





13.  Table 4-2, of the regulation, states, in pertinent part, that a Regular commissioned Army or Air Force officer who was discharged because of failure of selection for promotion to grade O-3 or above and received severance pay before 15 September 1981 and later qualifies for retired pay would not be required to repay the severance pay.  It adds that recoupment of severance pay received 15 September 1981 or later, will be in accordance with the provisions of paragraph 040302 of the DODFMR.

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 applicant’s concerns are understood, recoupment of separation/
severance pay when an individual later qualifies for retired pay or disability compensation is a requirement of law.

3.  The applicant’s contentions have been noted; however, to grant his request would afford him a benefit that is not afforded to others in similar circumstances.  The applicant 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.  The applicant's contention that he was informed that legislation had been submitted to remove the recoupment for non-disability severance pay and that he discovered that it has only been in the last 3 years that the law was not changed is acknowledged.  A review of the DODFMR shows that an interim change to Chapter 4 was approved and implemented in December 2005 and revealed no changes to paragraph 0403, pertaining to severance pay non-disability.

5.  In view of the circumstances in this case and by law, the applicant is not entitled to be relieved of recoupment of his non-disability severance pay.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___J____  __JM____  ___SWF_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  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 applicant’s dedicated service and his performance in the Regular Army and the USAR 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.  






____John T. Meixell________
          CHAIRPERSON




INDEX

CASE ID
AR20070009312
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071129
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20070831
DISCHARGE AUTHORITY
AR 600-8-24, PARA 6-13C (1)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
128
2.

3.

4.

5.

6.