IN THE CASE OF:
BOARD DATE: 6 August 2009
DOCKET NUMBER: AR20080012458
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by removing the separation pay entry in block 18 of that form.
2. The applicant states, in effect, that his DD Form 214 incorrectly shows he was paid $9,262.26 in separation pay when in fact he did not receive any separation pay or pay for his accrued leave. Additionally, funds are being withheld by the Department of Veterans Affairs (VA) from his disability.
3. The applicant provides a copy of his on-line leave and earnings statement (LES) for the month of February 2005.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 3 February 1998 for a period of 3 years and training under the Airborne and Combat Engineer Training option. He completed his training and was assigned to Fort Bragg, North Carolina.
3. On 5 February 2001, he reenlisted for a period of 6 years, assignment to Europe and a Selective Reenlistment Bonus (SRB) of $15,006.00. He elected 50% payment of the SRB at the time of reenlistment. He was promoted to the pay grade of E-5 on 7 November 2001 and subsequently served in Italy and Iraq with the 173rd Airborne Brigade.
4. On 17 February 2005, while stationed at Fort Bragg, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-8, due to parenthood. He had served 7 years and 15 days of total active service and his DD Form 214 reflects that he was paid $9,262.26 in separation pay.
5. In the processing of this case a staff advisory opinion was obtained from the Defense Finance and Accounting Service (DFAS) in Indianapolis, Indiana. Officials at the DFAS indicate that while the applicant was scheduled to be paid separation pay and pay for his accrued leave, the recoupment of his separation pay and pay for leave offset the unsatisfied debt to the Government that resulted from the applicants unsatisfied SRB payment and the advance pay he received in August 2004. Even after the recoupment, the applicant's debt to the Government was still not satisfied. DFAS provided a copy of the worksheets used to compute the applicant's debt.
6. The advisory opinion and attachments were provided to the applicant for comment and/or rebuttal and to date, no response has been received by the staff of the Board.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that the entry on his DD Form 214 regarding his separation pay in the amount of $9,262.26 should be deleted because he did not actually receive the pay at the time of separation has been considered and it appears to lack merit.
2. Based on the DFAS advisory opinion, the applicant's separation for parenthood occurred at a point that caused the applicant to be indebted to the Government in an amount that exceeded what he was scheduled to receive at the time of discharge and the funds in question were withheld in order to offset his debt.
3. While the validity of all of the applicant's debt, based on the available records, cannot be determined with any degree of certainty, the worksheet used to compute the applicant's debt to the Government was provided to the applicant for comment and/or rebuttal and he has failed to dispute any of the information supplied by DFAS.
4. Therefore, in the absence of evidence to the contrary, it must be presumed that the applicant's separation pay and the other pay that was withheld at the time of discharge to offset his debt to the Government was correct and in accordance with applicable laws and regulations.
5. Although the applicant did not physically receive the funds in question at the time of discharge, he in fact did receive the funds, as they were used to offset a debt he had previously incurred. He received funds for which he did not satisfy the conditions of his contract; he also received advance pay he had not repaid. Accordingly, the entry regarding his separation pay on his DD Form 214 appears to be correct.
6. 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) AR20080012458
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