IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080003721 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of Item 18 (Remarks) on her DD Form 214 (Certificate of Release or Discharge from Active Duty), to show she received “$61,956.57” instead of “$85,791.43” in Special Separation Benefit (SSB) pay.

2.  The applicant states, in effect, that she was discharged with entitlement to $85,791.43 in gross SSB pay.  However, after taxes, she received a net amount of $61,956.57.  She is now a disabled veteran, but the Department of Veterans Administration (VA) is recouping her disability entitlements based on the gross amount of her SSB instead of the net amount as outlined in the recoupment of SSB paragraph, under chapter 4, Military Pay Policy and Procedures for Retired Pay, Department of Defense (DOD) 7000.14-R (Department of Defense Financial Management Regulation), Volume 7.

3.  The applicant provides a copy of her DD Form 214, dated 1 February 1997, and a copy of her March 1997 Leave and Earnings Statement (LES) in support of her application.  

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.  With prior enlisted service, the applicant’s records show that she was initially appointed as a Signal Corps second lieutenant (2LT) in the U.S. Army Reserve through Officer Candidate School (OCS) and entered active duty on 13 June 1986.  She subsequently completed the Signal Officer Basic and Advanced Courses, and was promoted to first lieutenant on 13 December 1987 and to captain on 1 February 1991.

3.  The facts and circumstances surrounding the applicant’s separation from the Army are not available for review with this case.  However, the applicant’s DD Form 214 shows that while serving in the grade of captain, she voluntarily tendered an unqualified resignation and was subsequently released from active duty and was approved for separation under the SSB program on 1 February 1997.

4.  The applicant's DD Form 214 shows she was released from active duty under the Early Release Program - Special Separation Benefit (SSB), in accordance with paragraph 2-5 of Army Regulation 600-8-24.  Item 18 (Remarks) of this DD Form 214 shows she was paid SSB pay in the gross amount of $85,791.43.  The DD Form 214 also shows she completed 13 years, 2 months, and 16 days of creditable active military service.

5.  On 1 February 1997, the applicant was appointed as a Reserve commissioned officer in the USAR and was subsequently promoted to major (MAJ) on 31 August 1998.  She was honorably discharged from the USAR on 24 September 2002.

6.  The applicant’s March 1997 LES shows under "Entitlements" that, in addition to base pay, housing and subsistence, she received $85,791.43 in gross SSB payments.  After taxes, her net pay was $61,956.57.

7.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  It states, in pertinent part, that any officer on active duty (for more than 90 calendar days) may tender 

a resignation under this paragraph except when action is pending that could 
result in resignation for the good of the Service; the officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending.  Eligibility for and payment of separation pay is governed by Department of Defense (DOD) Instruction 1332.29 and the Department of Defense Military Pay and Allowances Entitlements Manual (DODPM).  Section B in chapter 4 of the DODPM contains information for determination of entitlement to non-disability separation pay.

8.  To assist in the drawdown of the Army, the Voluntary Separation Incentive Program (VSIP) and SSB program were established to provide incentives to Soldiers to voluntarily separate from active duty and accept an appointment or enlistment in, or transfer to, the Ready Reserve or a Reserve component.  Both separation incentive options, the VSI and the SSB, were offered jointly.  Service members who were approved for the VSIP had the option of receiving either the VSI or the SSB.

	a.  Those who chose the SSB received a lump sum payment equal to 15 percent of his/her annual basic pay multiplied by his/her number of years of active military service.  In return, they had to agree to serve in the Ready Reserve for a period of not less than 3 years after completion of any remaining service obligation.  (Note: If involuntary separation pay was received, an offset of the SSB payment had to be made.)
 
	b.  Those choosing the VSI were to receive an annual payment equal to 2.5 percent of his/her annual basic pay, multiplied by the number of years of active Federal service.  The member had to agree to serve in the Ready Reserve for the entire period that he/she received annual payments.  (NOTE: If involuntary separation pay was received, an offset had to be made against future payments until the amount received was recouped.)

9.  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 regulation mandates the type of pay and amount shall be entered.  Although not stated, this amount is always the gross amount of pay.

10.  The Department of Defense Financial Management Regulation (DODFMR), in Volume 7B, Chapter 4, Section 0406, provides for the recoupment of Special Separation Benefit (SSB) payments as follows:

	a.  If a member who has received an SSB payment becomes eligible for retired pay, recoup from the member the gross amount of SSB received, as shown on the member’s DD Form 214 [emphasis added].

	b.  Under the original SSB legislation, a member who received an SSB payment and who subsequently qualified for benefits administered by the VA was subject to recoupment of the gross amount of the SSB that he or she had been paid.  Under Section 653 of Public Law 104-201, for payments of SSB that were made after 30 September 1996, the amount subject to recoupment was the total gross amount of the SSB paid, less the amount of federal income tax withheld from such pay.  Public Law 105-178 extended the provisions of section 653 to any payment of SSB made during the period 5 December 1991, through
30 September 1996.  The VA administers the refund program for members affected by the retroactive period of adjustment.  No recoupment of SSB is required, regardless of when paid, if the disability for which the member receives VA compensation was incurred or aggravated during a period of later active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants the amount of the SSB payment on her DD Form 214 to reflect her net pay rather than the gross amount to which she was entitled.  She makes this request because the VA is taking recoupment action based on the gross amount reflected on her DD Form 214.

2.  The Army regulation governing the preparation of the DD Form 214 requires an entry in Item 18 (Remarks) to show the type and amount of pay received.  This is always the gross amount; the DODFMR clearly speaks to "the gross amount of SSB received, as shown on the member’s DD Form 214."  Thus, there is no error on the applicant's DD Form 214 and no correction is warranted.

3.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant's issue is not with her DD Form 214, but with the VA's recoupment action.  She is advised to provide a copy of her March 1997 LES and 
a copy of The Department of Defense Financial Management Regulation (DODFMR), in Volume 7B, Chapter 4, Section 0406 to the VA to support a claim with that agency.

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 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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003721



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ABCMR Record of Proceedings (cont)                                         AR20080003721



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