IN THE CASE OF:
BOARD DATE: 12 February 2009
DOCKET NUMBER: AR20080018299
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 correction of his active federal service to show he was eligible for severance pay.
2. The applicant states that he feels his active federal service has not been calculated correctly causing him to be ineligible for severance pay.
3. The applicant provides a copy of his separation orders in support of this 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. The applicant's records show he enlisted in the Regular Army on
15 February 1989. The highest rank he attained while serving on active duty was private/pay grade E-1.
3. On 4 August 1989, the applicant was discharged from active duty under provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to a physical disability without severance pay.
4. Headquarters, U.S. Army Medical Department Activity, Orders Number 114-2, dated 25 July 1989 additional instructions stated in part that the applicant was discharged with a disability rating of 20 per cent and he was not authorized disability severance pay because he had not completed 6 months of active federal service. It further shows the applicant had 5 months and 20 days of active federal service at the time of separation.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his active federal service was miscalculated.
A review of the applicant's records show he entered active duty on 15 February 1989 and he was discharged on 4 August 1989. Therefore, his records are correct as currently constituted, in that he had 5 months and 20 days of active federal service at the time of separation.
2. The ABCMR does not correct properly constituted military records to establish entitlement to benefits.
3. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20080018299
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ABCMR Record of Proceedings (cont) AR20080018299
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