IN THE CASE OF:
BOARD DATE: 16 July 2009
DOCKET NUMBER: AR20090000999
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 that his Special Separation Benefit (SSB) be recalculated.
2. The applicant states that his time in service started on 12 July 1976 but his SSB was based on a start date of 25 January 1979.
3. The applicant provides, in support of his application, copies of a DARP Form 249 (Chronological Statement of Retirement Points), his 1 September 1992 DD Form 214 (Certificate of Release or Discharge from Active Duty), three pages of medical treatment records from 1976, and two pages of his DA Form 2-1 (Personnel Qualification RecordsPart I).
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 12 July 1976. He was discharged to reenlist on 25 January 1979 and issued a DD Form 214 to cover this period of 2 years, 6 months and 14 days.
3. The applicant was separated on 1 September 1992 under the Fiscal Year 92 Enlisted Voluntary Early Transition Program. His DD Form 214 shows that he reenlisted on the same day he was discharged, 25 January 1979. Therefore, block 12d (Total Prior Active Service) was correctly adjusted by one day to reflect 2 years, 6 months and 13 days.
4. The applicant's SSB payment of $50,718.57 appears in block 18 of the DD Form 214. The calculations upon which this payment was based are not contained in the available records.
5. The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown. These incentive programs were designed to induce members of the Armed Forces to leave the military voluntarily. Under both the VSI and the SSB programs, qualifying service members who voluntarily left active duty before their retirement vested received benefits based on their salary at the time of separation and on years of service.
6. Army Regulation 15185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body.
DISCUSSION AND CONCLUSIONS:
1. The applicant states that his time in service started on 12 July 1976 but his SSB was based on a start date of 25 January 1979.
2. The applicant's entire active service is correctly shown on his final DD Form 214. If the Total Prior Active Service of 2 years, 6 months, and 13 days is subtracted from the date he entered active duty for the period of time shown on that DD Form, 25 January 1979, it yields 12 July 1976, which the applicant provides as the correct start date.
3. The calculations for the applicant's SSB payment are not available; however, it appears the correct start date was used.
4. In the absence of evidence in the available military personnel records, such as his separation orders or a document that indicated how many years of service his separation pay was calculated on, it is impossible to determine if the applicant's separation pay was improperly calculated. Therefore, the presumption of administrative regularity must be applied and the applicant's request should be denied.
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) AR20090000999
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ABCMR Record of Proceedings (cont) AR20090000999
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