IN THE CASE OF:	

		BOARD DATE:	 9 September 2009

		DOCKET NUMBER:  AR20090007031 


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, correction of Block 18 (Remarks) on his DD Form 214 (Certificate of Release or Discharge from Active Duty), to show he received "$25,000.00" instead of "$34,304.40" in disability severance pay.

2.  The applicant states the amount of severance pay he received is shown incorrectly on his DD Form 214 and he has been trying to correct this error for a long time.  He adds that he found out through the Department of Veterans Affairs (DVA) that he is paying back the amount shown on his DD Form 214 instead of the actual amount received. 

3.  The applicant provides a copy of his DD Form 214, dated 19 June 1989, in support of his 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 (RA) on
28 June 1976.  He was trained in and held military occupational specialty (MOS) 11B (Infantryman) and 75C (Personnel Management Specialist).  He also attained the rank/grade of sergeant (SGT)/E-5 during his tenure of service.    

3.  On 10 April 1989, a medical evaluation board (MEB) considered the applicant’s clinical records, laboratory findings, and physical examinations, and determined that he had the medical conditions of chest pain, osteomyelitis of left middle finger, hypertension, and hypercholesterolemia, and recommended his referral to a physical evaluation board (PEB).

4.  On 17 April 1989, an informal PEB convened at San Francisco, CA, and determined that the applicant’s medical conditions rendered him unfit and recommended his separation with entitlement to severance pay.  

5.  On 14 June 1989, Headquarters, Madigan Army Medical Center, Tacoma, WA, published Orders 86-3 directing the applicant’s discharge by reason of physical disability with entitlement to severance pay in pay grade E-5 based on 12 years, 11 months, and 22 days of service computed under Title 10, U.S. Code, section 120B.

6.  On 19 June 1989, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was honorably discharged under the provisions of paragraph 4-24e(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, and Separation).  This form shows he completed 12 years, 11 months, and 22 days of creditable active service.  Block 18 of this form shows the applicant was authorized severance pay in the amount of $34,304.40

7.  The applicant’s June 1989 Leave and Earning Statement (LES) shows that his "Entitlements" column was credited with the amount of ($1,966.00, $9,800.00, $9,900, and $10,191.60 for a total of $31,857.60) his severance pay and the "Other Collections" column shows the amount of $6,738.41 in Federal taxes (determined by the tax rules appropriate at the time) and the amount of $25,908.45 received in the form of a casual pay. 

8.  A Defense Finance and Accounting Service (DFAS) email, dated 19 August 2009, confirmed the applicant received the gross amount of $31,665.60 in severance pay less the amount of $6,333.00 in Federal taxes for a net amount of $25,908.45 (this amount is also reflected in the Other Collections column of his June 1989 LES).
9.  A DFAS payment worksheet shows the applicant received a net amount of $25,332.48 after subtracting the 20 percent Federal tax rate tax (only) appropriate at the time.

10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Block 18 is used for Department of the Army mandatory requirements when a separate block is not available.  For a Soldier receiving severance, readjustment, or non-disability severance pay (as indicated by the finance office), enter type of pay and amount.  This guidance was later clarified to ensure transition points were entering the gross amount of severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was discharged by reason of physical disability with entitlement to severance pay.  Prior to his discharge, the Army Transition Center calculated his total entitlements, including severance pay as well as his normal entitlements of base pay, subsistence, quarters, and housing allowances, through the date of his discharge, 19 June 1989, which amounted to $34,304.40, and listed that amount on the DD Form 214.

2.  The applicant’s gross severance pay received on 19 June 1987 was $31,665.60.  He paid the amount of $6,333.00 in Federal taxes and collected a net amount of $25,908.45.  Therefore, the applicant's DD Form 214 should be corrected to show the amount of $31,665.60 in severance pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from Block 18 of his DD Form 214 the entry "$34,304.40" and replacing it with the entry "31,665.60."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting block 18 to reflect the amount of $25,000.00.



      __________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)                                         AR20090007031



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ABCMR Record of Proceedings (cont)                                         AR20090007031



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