IN THE CASE OF:	  

		BOARD DATE:	       1 JULY 2009

		DOCKET NUMBER:  AR20080016889 


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 his separation orders be amended to show he was authorized separation pay.

2.  The applicant states that he completed over 6 years of active service and was involuntarily separated for the Army's convenience and that according to the regulation he should have been paid separation pay.  He also states that he discussed this issue with his unit finance specialist and was told he is authorized the separation pay; however, the finance specialist was unable to authorize payment. 

3.  The applicant provides copies of his U.S. Air Force DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 14 December 1989 and U.S. Army DD Form 214, dated 25 August 2006, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Air Force on 14 December 1984.  He served in various duties and was honorably discharged on 12 February 1989.  The DD Form 214 he was issued shows he completed 4 years and 2 months of creditable active military service.

2.  After a break in service, the applicant enlisted in the Iowa Army National Guard (IAARNG) for a period of 3 years on 24 March 1998.  He was subsequently awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist), and was discharged on 24 June 2001 as an unsatisfactory participant with a character of service of under honorable conditions (general).

3.  After a second break in service, the applicant enlisted in the IAARNG in the rank/grade of specialist/E-4 for a period of 1 year on 12 April 2004.  He subsequently entered active duty for training (ADT) on 3 May 2004, completed basic combat and advanced individual training, and was awarded MOS 13E.  He was released from ADT to the control of his ARNG unit on 30 October 2004.  The DD Form 214 he was issued shows he completed 5 months and 28 days of creditable active military service 

4.  The applicant's records also show he was honorably discharged from the IAARNG on 1 February 2005 for the purpose of enlisting into another component of the armed forces.

5.  On 2 May 2004, the applicant enlisted in the Regular Army in the rank/grade of SPC/E-4 for a period of 4 years.  He was subsequently awarded MOS 21E (Construction Equipment Operator) and was assigned to 642 Combat Support Battalion, Fort Drum, NY.

6.  On 25 August 2006, the applicant was honorably discharged under the provisions of paragraph 5-8 of Army Regulation 635-200 (Personnel Separations) by reason of parenthood.  The DD Form 214 he was issued shows he completed 1 year, 6 months, and 24 days of creditable active military service.  Additionally, item 26 (Separation Code) of this form shows the entry "JDG." 

7.  The applicant's records show he completed a total of 6 years, 2 months, and 12 days of creditable active military service.

8.  The applicant's records also show he enlisted in the IAARNG for a period of one year on 8 September 2006.  He was promoted to sergeant (SGT)/E-5 and executed a 2-year extension in the IAARNG on 14 December 2006.  

9.  Title 10, US Code, section 1174, states that "a regular enlisted member of an armed force who is discharged involuntarily or as a result of the denial of the reenlistment of the member and who has completed six or more, but less than 20 years of active service immediately before that discharge is entitled to separation pay competed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay."  Subsection (e) (1) (A) of this section states, "As a condition of receiving separation pay under this section, a person otherwise eligible for that pay shall be required to enter into a written agreement with the Secretary concerned to serve in the Ready Reserve of a reserve component for a period of not less than three years following the person's discharge or release from active duty."  Subsection (h)(1), of this section states, "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 received separation pay 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 received."

11.  Department of the Army Circular 635-92-1 (Separation Pay) outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by Department of Defense Instruction 1332.29 dated 20 June 1991 and other Department of the Army guidance resulting from Public Law 101-510.  The circular also illustrates the various types of separation that are either eligible or ineligible for separation pay.  It states, in pertinent part, that separation pay is authorized for soldiers serving on active duty on 5 November 1990 who were involuntarily separated prior to completion of obligated service or who were denied continuation of further service.  To be eligible for separation pay and benefits, individuals must have served 6 or more years of active Federal service and had to sign a Department of the Army Form 7154-R (Agreement to Join Ready Reserve) for a period of not less than 3 years.  

12.  Army Regulation 635-5-1 (Separation Program Designator Codes(SPD)) states that SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "JDG" SPD code is the correct code for Soldiers involuntarily discharged under paragraph 4-8 of Army Regulation 635-200 by reason of parenthood.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to authorize him separation pay based on his involuntary separation.

2.  The evidence of record shows that at the time of his involuntary discharge from the Army by reason of parenthood, the applicant had completed a total of 6 years, 2 months, and 12 days of creditable active military service.  The evidence of record also shows that after his discharge, the applicant enlisted in the IARNG for one year and extended that reenlistment to 3 years.  
3.  While most transition benefits that the applicant would have received were short-term benefits with expiration periods that would afford a smoother transition to civilian life, such is not the case with separation pay.  The evidence of record suggests that it would be in the interest of justice to afford the applicant full separation pay for his honorable service.

4.  The applicant is reminded, for future reference, of the provisions of Title 10, US Code, section 1174, which states, "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 received separation pay 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 received."

BOARD VOTE:

_____X___  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 by showing that he is entitled to full separation pay.




      _______ _   _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)                                         AR20080016889



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ABCMR Record of Proceedings (cont)                                         AR20080016889



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