IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080008955 


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, that the Special Separation Bonus (SSB) he received not be subject to recoupment based on his Department of Veterans Affairs (VA) disability payments.  

2.  The applicant states, in effect, that he was improperly counseled regarding the SSB he received upon his discharge and that a VA representative informed him it would have no effect on his disability pension and benefits.  He states that had he been given the correct information, he would not have made the decision he did to accept the SSB given he had completed over 19 years of service.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Letter to the Board; Self-Authored Letter to the Secretary of Defense; Self-Authored Letter to General P_____; Self-Authored Letter to 
Mr. M____; Self-Authored to Case Worker; Paralyzed Veterans of America (PVA) Letter, dated 23 March 2000; PVA Letter, dated 26 April 2000; Congressional Inquiry with VA Response Letter, dated 5 February 2008; Notice of Disagreement with VA Decision; Statement in Support of Claim, dated 8 August 2006; 
Self-Authored Letter to VA, dated 19 March 2000; Congressional Inquiry, 
dated 1 May 2000; VA Letter, dated 24 August 1993; VA Rating Decisions with Accompanying Medical Documents, dated 15 November 2006 and 25 January 2008; and Separation Orders and Document (DD Form 214).  


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 record shows that he initially enlisted in the Regular Army and entered active duty on 10 April 1972, and served until being honorably discharged, in the rank of specialist four (SP4), on 10 June 1974.  The separation document he was issued shows he completed 2 years, 2 months, and 1 day of creditable active military service, and that he accrued 30 days of time lost during two separate periods of being absent without leave (AWOL).  

3.  On 22 December 1977, he enlisted in the RA and reentered active duty.  He served until 11 December 1980, at which time he was honorably discharged, in the rank of sergeant (SGT), at the expiration of his term of service (ETS).  The DD Form 214 he was issued shows he completed a total of 8 years, 6 months, and 27 days of active military service.  

4.  On 25 September 1981, the applicant enlisted and entered his last period of active duty service, and on 6 June 1984, he was promoted to staff sergeant (SSG), which is the highest rank he held while serving on active duty.

5.  The applicant's record contains a United States Army Personnel Command (PERSCOM) Memorandum, dated 12 May 1992, Subject:  FY 92 Voluntary Early Transition Program with Voluntary Incentives Approval Notification.  This memorandum approved the requests of Soldiers listed on an enclosure, for voluntary separation through the FY 92 Enlisted Voluntary Early Release Transition Program with Voluntary Incentives.  The list of approved Soldiers included the applicant, who had requested early separation in September 1992, with an SSB.  

6.  The applicant's record contains no medical treatment records or other documents that indicate the applicant was suffering from a disabling medical condition that would have warranted his separation processing through medical channels at the time he voluntarily requested early separation under the provisions of the FY 92 Enlisted Voluntary Early Release Transition Program with an SSB.  His record also contains a Transition Counseling Acknowledgement Checklist, which confirms he requested and received counseling on veteran's benefits administered by the Department of Veterans Affairs (VA).

7.  In conjunction with his early transition, the applicant enlisted in the United States Army Reserve (USAR), and on 1 September 1992, he was honorably released from active duty, in the rank of SSG, and transferred to the USAR Control Group (Reinforcement).  The DD Form 214 he was issued shows he completed a total of 19 years, 6 months, and 4 days of active military service.  Item 18 (Remarks) confirms that in conjunction with his early release, he was authorized and received an SSB of $62,442.90.  

8.  The applicant provides a VA Letter, dated 24 August 1993, which indicates the applicant's following disabilities were service-connected, but were less that 
10 percent (%) disabling:  residuals, bilateral inguinal hernia; hearing loss in right ear; residuals, lumbar injury with degenerative changes; residuals, fracture of left first toe; and hemorrhoids.  It further indicates that the applicant's claim for service-connection for the following conditions were denied:  residuals, right shin splint; residuals left shin splint; right hip and groin sprain; residuals, sinus condition; residuals, elbow injury; residuals, trick thumb injury; residuals, stress; residuals, chest pain; cysts; numbness in arms; bronchitis; left hand; tendonitis; painful joints; hypertension; and headaches.  It further informed the applicant he was entitled to treatment by the VA for any service-connected disabilities.  

9.  The applicant also provides VA Rating Decisions from November 2006 and January 2008.  In the 2006 decision, the applicant was granted a 10% disability rating for the service-connected condition "C4-5, C5-6, C6-7 right sided cervical spondylosis", and the previous denial of service-connection for emphysema was confirmed.  In the 2008 decision, the disability rating for the "C4-5, C5-6, C6-7 right sided cervical spondylosis" condition was increased to 20% and the applicant's total award amount was established as $230.00, which was withheld based on his receipt of separation pay in the amount of $62,442.00.  

10.  Title 38, Code of Federal Regulations (CFR) provides guidance on VA benefits.  Paragraph 3.700 (Concurrent Benefits and Elections) states, in pertinent part, that not more than one award of pension, compensation, or emergency officers’, regular or reserve retirement pay will be made concurrently to any person based on his or her own service.  Subparagraph (5) contains guidance on Separation pay and special separation benefits and states, in pertinent part, that where payment of separation pay or special separation 
benefits was made on or before 30 September 1996, VA will recoup from disability compensation an amount equal to the total amount of separation pay or special separation benefits. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the recoupment of his SSB by the VA based on his receipt of disability compensation from that agency is unjust was carefully considered.  However, the administration of benefits by the VA is not within the purview of this Board.  

2.  The evidence of record confirms the applicant voluntarily requested early transition with a SSB under the provisions of the FY 92 Early Transition Program and was released from active duty accordingly.  At the time of his separation, he was not suffering from a disabling medical condition that would have supported his separation processing through medical channels and he was fully qualified for retention, as evidenced by his enlistment in the USAR.  The record also contains a transition counseling checklist that confirms the applicant requested and received counseling on VA benefits.  Notwithstanding the applicant's assertions to the contrary, there is no indication the applicant received improper counseling regarding VA benefits.  

3.  The governing law and regulation requires that the VA recoup from disability compensation, separation pay, or special separation benefits (SSB) made on or before 30 September 1996, in an amount equal to the total amount of separation pay or special separation benefits.  In this case, although the applicant's current medical condition is unfortunate, the $62,442.90 in SSB he received in conjunction with his early transition on 1 September 1992, appears to be subject to these recoupment provisions.

4.  Given the administration of VA benefits is not within the purview of this Board, and because it appears the recoupment of the applicant's SSB is being accomplished in accordance with the applicable VA regulations, absent any error or injustice related to his separation processing, there is an insufficient evidentiary basis to support granting relief in this case.  

5.  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

____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
      
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)                                         AR20080008955



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ABCMR Record of Proceedings (cont)                                         AR20080008955



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