RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20070018357 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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, correction of Item 18 (Remarks) on his DD Form 214 (Certificate of Release or Discharge from Active Duty), to show he received “Casual Pay $46,484.90” instead of “Separation Pay $56,978.34.”  

2.  The applicant states, in effect, that he was discharged with entitlement to separation pay in the amount of $56,978.34.  His military pay voucher shows he received the amount of $46,484.90 on 18 June 1993 in the form of a casual pay. He is now a disabled veteran.  But the Veterans Administration (VA) would not pay him his monthly disability check because his DD Form 214 shows he was discharged with separation pay instead of casual pay.  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214, dated 18 June 1993.

	b.  Office of the Chief of Army Reserve Memorandum, dated 15 April 1993, Certification of Active Federal Service for Separation Pay Entitlements.

	c.  Defense Finance and Accounting Service (DFAS) Separation Pay Worksheet, dated 11 June 1993.

	d.  DA Form 2139 (Military Pay Voucher), dated 18 June 1993.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant’s records show that he was initially appointed as a second lieutenant (2LT) in the Regular Army on 11 April 1977 and entered active duty on 14 May 1977.  He subsequently attended the Air Defense Artillery Officer Basic Course, and was promoted to first lieutenant on 8 June 1980 and to captain on 4 April 1981.

3.  On 18 February 1981, the applicant tendered his unqualified resignation for compassionate reasons and was subsequently discharged on 1 June 1981.  The DD Form 214 he was issued at the time shows he completed 4 years and 18 days of creditable active military service.

4.  On 1 June 1981, the applicant was appointed as a Reserve commissioned officer in the Adjutant General Corps of the U.S. Army Reserve (USAR).  He was subsequently promoted to major (MAJ) on 12 May 1989 and entered the Active Guard Reserve (AGR) program.

5.  On 18 March 1993, by memorandum, Office of the Chief, Army Reserve, St. Louis, Missouri, notified the applicant that he was not recommended for continuation in the USAR AGR program and would be released from active duty no later than the earlier of 18 June 1993 or at the expiration of his AGR tour.

6.  On 15 April 1993, by memorandum, Office of the Chief, Army Reserve, St. Louis, Missouri, certified that the applicant had completed a total of 12 years, 7 months, and 20 days of active federal service, for the purpose of entitlement to separation pay. 

7.  On 21 April 1993, Headquarters, Fifth U.S. Army and Fort Sam Houston, Fort Sam Houston, Texas, published Orders 30-2, reassigning the applicant to the U.S. Army Transition Point, Fort Sam Houston, Texas, for the purpose of separation.  

8.  On 11 June 1993, the servicing military pay office computed the applicant’s entitlements (separation pay, prorated entitlements for June 1993, and accrued leave) and subtracted his deduction and collections (advance pay, casual pay, taxes, and insurance), and issued the applicant a payment in the amount of $46,684.90.  The applicant indicated that he received this amount.  

9.  On 18 June 1993, the applicant was honorably discharged.  The DD Form 214 he was issued at the time shows he was released from active duty for completion of his AGR tour.  Item 18 of this DD Form 214 shows the applicant was authorized separation pay in the amount of $56,978.34.

10.  Department of Defense Instruction (DODI) 1332.29, paragraph 3.1., Full Separation Pay (Nondisability), states that full payment of nondisability separation pay is authorized to members of the Regular and Reserve components involuntarily separated from active duty who meet the following conditions:

	a.  the member is on active duty or full time National Guard duty and has completed at least 6 years, but fewer than 20 years of active service.  For reserve members not on the active duty list when separated, 6 years of continuous active duty or full time National Guard must have preceded immediately before such separation.  A period of active duty is continuous if any break in military service does not exceed 30 days; 

	b.  the service member's separation is characterized as honorable; and

	c.  the service member is being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on active duty or full time National Guard duty, when the member is a Regular Army commissioned or warrant officer, other than a commissioned warrant officer, separated or transferred to the Retired Reserve under chapters 361, 363, 573, 861, or 863 of Title 10, U.S. Code, or a Reserve commissioned officer on the active duty list or a Reserve warrant officer who is separated for similar reasons under Service policies.

11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Item 18 is used for Department of the Army mandatory requirements when a separate block is not available.  For a Soldier receiving separation/readjustment or non-disability severance pay (as indicated by the finance office), the type of pay and amount are entered.





DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was not recommended for continuation in the AGR program and was accordingly released from active duty with entitlement to separation pay in the amount of $56,978.34, as shown on the computation conducted by the military pay office at the time and based on the applicant’s certification of active Federal service for separation pay entitlement.  The underlying reason for his discharge was his involuntary discharge, which entitled him to separation pay.  The only valid entry permitted in Item 18 of his DD Form 214 is the type of pay and amount.

2.  The evidence of record further shows that the applicant received a net payment of $46,684.90, after taxes, insurance, advances, and other expenses, were deducted.  The method of payment, whether it was a casual pay, electronic fund transfer, or money order, did not change the fact that he was discharged with entitlement to separation pay.  

3.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.

								XXX
      ______________________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070018357



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508