IN THE CASE OF:	  

		BOARD DATE: 	       27 October 2009

		DOCKET NUMBER:  AR20090009900 


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 records to show he is entitled to payment of his withheld separation pay.

2.  The applicant states that he is being barred from receiving the withheld portion of his separation pay due to the 6-year Barring Act after his discharge had been upgraded in 2005.  He adds that he has had several visits to the hospital due to his heart condition and that he has had two previous heart attacks and currently has no upper teeth. 

3.  The applicant provides copies of letters, dated 12 and 19 May 2009, from the Defense Finance and Accounting Service, Indianapolis, (DFAS-IN); a copy of a letter, dated 22 November 1991, from the Chief, Transition Assistance Management Program Task Force, U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command or USAHRC), Alexandria, VA; copies of two self-authored letters, dated 22 April and 18 May 2009, to DFAS-IN; copies of his voided and reissued DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 30 November 1990; a copy of his voided DD Form 215 (Correction to DD Form 214), dated 19 May 1993; a copy of the Army Discharge Review Board (ADRB) Case Report and Directive, dated 14 November 2005; a copy of his Honorable Discharge Certificate, dated 30 November 1990; and a copy of his Department of Veterans Affairs (DVA) Discharge Summary, dated 17 October 2008, in support of his request.



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.  Having had prior service in the Army National Guard (ARNG), the applicant's records show he enlisted in the Regular Army (RA) on 27 September 1978 and he was initially trained in and held military occupational specialty (MOS) 36K (Lineman).  He subsequently executed a series of extensions and/or reenlistments in the RA and he was awarded MOS 71L (Administrative Specialist).  He was promoted through the ranks to sergeant (SGT)/E-5 and he was assigned to the U.S. Army Element, U.S. Central Command, MacDill Air Force Base (AFB), FL. 

3.  On 11 April 1990, the applicant participated in a random unit urinalysis and his urine sample tested positive for marijuana. 

4.  On 11 May 1990, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against him citing his serious misconduct.  The applicant was provided with a copy of this bar and he elected not to submit a statement on his own behalf.  The bar was approved by the approval authority on 25 May 1990.

5.  On 29 May 1990, the applicant appealed the bar to reenlistment and elected to submit a statement in his own behalf.  In his statement, dated 4 June 1990, he stated that the bar had impacted him negatively and requested an opportunity to continue his service.  

6.  On an unknown date in 1990, the approval authority carefully considered the applicant’s appeal and denied it. 



7.  On 24 July 1990, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct, citing his wrongful use of marijuana.

8.  On 24 July 1990, the applicant acknowledged receipt of the separation memorandum, he consulted with legal counsel, and he was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  The applicant requested consideration of his case by an administrative separation board and appearance before such a board. 

9.  On 4 October 1990, an administrative separation board convened at MacDill AFB to determine whether the applicant should be separated from the Army by reason of misconduct.  The board recommended the applicant’s discharge from the Army with a general, under honorable conditions discharge.  The board also recommended the applicant be given a probationary period to demonstrate successful rehabilitation and continuing satisfactory military service.

10.  On 19 November 1990, the separation authority disapproved that part of the board’s recommendation that would have suspended the discharge for six months and approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-abuse of illegal drugs.  He also directed the applicant be discharged immediately and be furnished a general, under honorable conditions discharge.  On 30 November 1990, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a character of service of under honorable conditions (general).  This form further confirms that he completed a total of 12 years, 3 months, and 19 days of creditable active military service.  Item 26 (Separation Code) of this form shows the entry "JKQ" and item 28 (Narrative Reason for Separation) shows the entry "Misconduct - Commission of a Serious Offense."

11.  On 22 November 1991, in response to the applicant’s request for separation pay (a copy of this request is not available for review with this case), the Chief, Transition Assistance Management Program Task Force, USAHRC, Alexandria, notified the applicant that Public Law 101-510, section 501, mandates separation pay for qualified involuntary separated Soldiers.  The Chief added that a review of the documents he (the applicant) submitted resulted in a determination authorizing the payment of half separation pay and that his packet was forwarded to DFAS-IN for processing.
12.  On 19 May 1993, the applicant was issued a DD Form 215 that added the entry "Separation Pay, $10,229.73" to item 18 (Remarks) of his DD Form 214. 

13.  On 16 July 2004, the applicant petitioned the ADRB for an upgrade of his discharge.

14.  On 14 December 2005, by letter, the ADRB notified the applicant that he was granted relief in the form of an upgrade of the characterization of his service to fully honorable and correction of the narrative reason of his separation to "Misconduct."  The letter further notified him that he may apply to DFAS for any monetary benefits to which he may have been entitled by virtue of this upgrade.  The ADRB also considered the applicant’s reason for separation and determined it was both proper and equitable.  The applicant was subsequently reissued a DD Form 214 that shows an honorable characterization of service.  However, his SPD remained as “JKQ.” 

15.  On 22 April 2009, by letter to DFAS-IN, the applicant requested any money due to him as a result of his upgraded discharge.

16.  On 12 May 2009, by letter, a DFAS-IN official notified the applicant that a general discharge provides the same separation entitlements as an honorable discharge and that he had received all the monies to which he was entitled.  

17.  On 18 May 2009, by letter to DFAS-IN, the applicant stated that the USAHRC letter, dated 22 November 1991, entitled him to the other half of his separation pay and so does the directive by the ADRB.

18.  On 19 May 2009, by letter, a DFAS-IN official notified the applicant that his request for additional monies was returned without action due to the Barring Act of 1940, as amended by Title 31, U.S. Code, section 3702.  According to the amendment, a claim is barred unless such claim is received within 6 years after the date such claim first occurred.  The purpose of the 6-year Barring Act is to relieve the Government of the need to retain and go back over old records for the purpose of settling old claims.  No matter how meritorious a claim may be, DFAS has no authority to waive the provisions of the law or to make exceptions to the time limit.  The official added that the date of receipt is the controlling factor in considering a claim.  Since his claim for additional separation pay occurred on
22 November 1991, and it was received more than 6 years after the date it occurred, it is barred from consideration by the provisions of the Barring Act.  Accordingly, no further action may be taken concerning this matter. 


19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

20.  Title 10, US Code, section 1174, states that "a regular enlisted member of an armed forces 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 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 (RC) for a period of not less than three years following the person's discharge or release from active duty."

21.  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 DOD Instruction (DODI) 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 DA Form 7154-R (Agreement to Join Ready Reserve) for a period of not less than 3 years.  It states in pertinent part, that a member who is separated for substandard performance or acts of misconduct or moral or professional dereliction is not eligible for separation pay, except when half separation pay is allowed.  Half separation pay is authorized for Soldiers who are not fully qualified for retention and are involuntarily separated.  The Soldier's service must be characterized as honorable or under honorable conditions (general).  Specifically, Soldiers separated under the following circumstances are authorized half separation pay:  Soldiers who are denied retention as a result of the DA Qualitative Management Program (QMP) or a local bar to reenlistment and who do not voluntarily separate under the provisions of chapter 16 of Army Regulation 635-200.

22.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

23.  Section 501 of Public Law 101-510, National Defense Authorization Act for Fiscal Year 1991, dated 5 November 1991, states in pertinent part, that:

	a.  3.1. Full payment of non-disability separation pay is authorized to members of the RA and RC involuntarily separated from AD (active duty) who meet each of the following four conditions:

		(1)  3.1.1. The service member meets one of the following criteria for active service:

			(a)  3.1.1.1. The member is on AD or full-time Army National Guard (ARNG) duty and has completed at least 6 years, but fewer than 20 years, of AD. For RC members not on the AD list when separated, 6 years of continuous AD or full-time National Guard (NG) duty must have preceded immediately before such separation.  A period of AD is continuous if any break in military service does not exceed 30 days.

			(b)  3.1.1.2. The member (other than a Regular enlisted member) was on AD or full-time ARNG duty on 5 November 1990, and on that date had 5 or 
more, but less than 6, years of active service.  For RC members not on the AD list when separated, 5 years of continuous AD or full-time NG duty must have preceded immediately before such separation.  A period of AD is continuous if any break in active service does not exceed 30 days.

			(c)  3.1.1.3. The member is a Regular officer, commissioned or warrant, who is being separated under Chapter 36 of Title 10, U.S. Code, (except under Section 630(1)(A) or 643 of such Chapter) or under Section 564 or 6383 of Title 10, USC, (reference (d)) and has completed at least 5 years, but fewer than 20 years of active service.

		(2)  3.1.2. The Service member's separation is characterized as "Honorable" and none of the conditions in paragraph 3.4., below, apply.

		(3)  3.1.3. The Service member is being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on AD or full-time NG duty, under one of the following specific conditions:

			(a)  3.1.3.1. The member is fully qualified for retention, but is denied reenlistment or continuation by the Military Service concerned.  This includes a service member who is eligible for promotion as established by the Secretary of the Military Department concerned, but is denied reenlistment or continuation on AD by the Military Service concerned under established promotion or high year of tenure policies.

			(b)  3.1.3.2. The member is fully qualified for retention and is being involuntarily separated under a reduction in force by authority designated by the Secretary of the Military Department concerned as authorized under Title 10, U.S. Code, (reference (d)).

			(c)  3.1.3.3. The member is a Regular officer, commissioned or warrant, who is being separated under Chapter 36 or Section 564, 1165, or 6383 of reference (d); a RC commissioned officer, other than a commissioned warrant officer, separated or transferred to the Retired Reserve under Chapters 361, 363, 573, 861, or 863 of reference (d); or a RC commissioned officer on the AD list or a Reserve warrant officer who is separated for similar reasons under Service policies.

			(d)  3.1.3.4. The member, having been denied reenlistment or continuation on AD or full-time NG duty by the Military Service concerned under subparagraphs 3.1.3.1. through 3.1.3.3., above, accepts an earlier separation from AD.

		(4)  3.1.4. The Service member has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of an RC of the Armed Forces for a period of not less than 3 years following separation from AD. 

			(a)  3.1.4.1. A member who enters into this written agreement and who is qualified for the Ready Reserves shall, upon such person's separation from AD, be enlisted or appointed, as appropriate, as an RC member by the Military Service concerned.  If the person has a service obligation under Section 651 of reference (d) or any other law that is not completed at the time the member is separated from AD, the 3-year obligation shall begin on the day after the day on which the member completes his or her obligation under such section of law.

			(b)  3.1.4.2. A member who enters into this written agreement and who is not qualified for appointment or enlistment in the Ready Reserves need not be enlisted or appointed by the Military Service concerned to be considered to have met this condition of eligibility for separation pay.

	b.  3.2.  Half separation pay (non-disability) is authorized to members of the RA involuntarily separated from active duty who meet each of following four conditions: (In extraordinary instances, Secretaries of the Military Departments concerned may award full separation pay to members otherwise eligible for half separation pay when the specific reasons for separation and the overall quality of the member's service have been such that denial of such pay would be clearly unjust.):

		(1)  3.2.1.The Service member meets one of the criteria for active service specified in subparagraph 3.1.1., above.

		(2)  3.2.2. The Service member's separation is characterized as "Honorable" or "General" and none of the conditions in paragraph 3.4., below, apply. 

		(3)  3.2.3. The Service member is being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on AD or full-time NG duty, or the Service member is being separated instead of board action as provided in DOD Directive 1332.30 (reference (f)), under one of the following specific conditions:

			(a)  3.2.3.1. The member is not fully qualified for retention and is denied reenlistment or continuation by the Military Service concerned as provided for in reference (e) under any of the following conditions:

				(1)  3.2.3.1.1. Expiration of service obligation.

				(2)  3.2.3.1.2. Selected changes in service obligation.

				(3)  3.2.3.1.3. Convenience of the Government.

				(4)  3.2.3.1.4. Homosexuality.

				(5)  3.2.3.1.5. Drug abuse rehabilitation failure.

				(6)  3.2.3.1.6. Alcohol abuse rehabilitation failure.

				(7)  3.2.3.1.7. Security).

			(b)  3.2.3.2. The member is being separated under a Service-specific program established as a half-payment level by the Secretary of the Military Department concerned, as provided for in section 4 below.

			(c)  3.2.3.3. The member, having been denied reenlistment or continuation on AD or full-time NG duty by the Military Service concerned under 3.2.3.1. and 3.2.3.2., above, accepts an earlier separation from AD.

		(4)  3.2.4. The Service member has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve as provided for in subparagraph 3.1.4., above.

	c.  3.4  Service members separated under the following circumstances are not eligible for separation pay: 

		(1)  3.4.1.  The member is separated from AD at the member's own request.  The following examples shall be considered to be a separation at the member's own request:

			(a)  3.4.1.1.  A member who declines training that the Military Service offers to qualify for a new skill or rating as a precondition to reenlistment or continuation on AD.

			(b)  3.4.1.2.  A member who requests separation as provided for in DOD Directives 1332.14 (reference (e)) or under regulations established by the Secretary of the Military Department concerned.  

			(c)  3.4.1.3. The member is a Reserve officer who declines a Regular appointment if offered at the mandatory integration point, when an all-Regular career force program is implemented by the Secretary concerned.

		(2)  3.4.2. The member is separated from AD during an initial term of enlistment or an initial period of obligated service.  The initial term of enlistment or initial period of obligated service is the active service obligation that the member incurred upon initial enlistment or upon enrollment in a commissioning program.  This limitation also applies to a member who desires to reenlist or continue at the conclusion of the initial term of enlistment or an initial period of obligation and is denied by the Service concerned.

		(3)  3.4.3. The member is released from AD for training or released from full-time NG for training.

		(4)  3.4.4. The member is immediately eligible upon separation for retired or retainer pay based upon his or her military service.

		(5)  3.4.5. The member is a warrant officer whose appointment is terminated and who then elects to enlist.

		(6)  3.4.6. The member is separated as a result of execution of a court-martial sentence.

		(7)  3.4.7. The member is being dropped from the rolls of the Military Service concerned.

		(8)  3.4.8. The member is being separated under other than honorable conditions. 

		(9)  3.4.9. The member is an enlisted member who is separated for unsatisfactory performance or misconduct as specified in DOD Directive 1332.14 (reference (e)).

		(10)  3.4.10. The member is an officer who is separated for substandard performance or acts of misconduct or moral or professional dereliction under Section 1166 or 1186 of Title 10, U.S. Code (reference (d)) or DOD Directive 1332.30 (reference (f)), except when half pay is allowed in paragraph 3.2., above.

		(11)  3.4.11. The member is separated under a Service-specific program established as a no payment level by the Secretary concerned, as provided for in section 4. below.

		(12)  3.4.12. Determination in extraordinary cases by the Secretary concerned that the conditions under which the member is separated do not warrant separation payment.  It is intended that this discretionary authority to deny payment be used sparingly. This authority is not to be delegated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting, in effect, payment of full separation pay, based, in part, on the ADRB's 14 November 2005 review of his discharge which resulted in a change of characterization from general, under honorable conditions to fully honorable, and the USAHRC’s 22 November 1991 letter that authorized him the payment of half separation pay.

2.  The evidence of record shows that the applicant was charged with an act of misconduct and he was notified of the initiation of separation action.  He acknowledged receipt of the notification and requested an administrative separation board.  Accordingly, a board convened and recommended to the approving authority that the applicant be discharged from the Army with a character of service of general, under honorable conditions with a suspension of separation for 6 months.  The separation authority disapproved the suspension and directed immediate discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s narrative reason for separation was assigned based on the fact that he was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 due to misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct" and the appropriate SPD code associated with this type of discharge is "JKQ." 

4.  On 22 November 1991, USAHRC reviewed a request for separation pay by the applicant and determined that the law mandated separation pay for qualified involuntarily-separated Soldiers and that a determination was made to authorize him the payment of half separation pay.  Contrary to what he stated in his 18 May 2009 letter to DFAS that he is entitled to the other half of his separation pay, the USAHRC review did not authorize full separation pay.

5.  The ADRB, as a matter of equity, changed the applicant's discharge to honorable and his narrative reason for separation to "Misconduct."  Again, contrary to what he stated in his 18 May 2009 letter to DFAS that the ADRB directive authorized him full separation pay, the ADRB’s decision did not determine if any monetary benefits were entitled by virtue of the changes directed.  It simply notified him that he may apply to DFAS for any monetary benefits to which he may be entitled as a result of this correction.  The ADRB also considered his reason for separation and determined it was both proper and equitable.  The applicant was subsequently reissued a DD Form 214 that shows an honorable character of service with the same SPD code of "JKQ."



6.  An entitlement to full separation pay requires eligibility to enter into a Ready Reserve agreement.  Since the applicant had been separated for misconduct and was also barred from reenlistment, he did not qualify for full separation pay.  

7.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090009900



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ABCMR Record of Proceedings (cont)                                         AR20090009900



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