BOARD DATE: 1 December 2009
DOCKET NUMBER: AR20090010342
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, award of a monetary entitlement, i.e., severance or separation pay, based on the upgrade of her discharge.
2. The applicant states, in effect, that she believes she should be entitled to some type of severance or separation pay for her time in the service. It was financially difficult for her as a single parent to maintain a stable environment for her family.
3. In support of her application, the applicant provides copies of correspondence from the Army Discharge Review Board (ADRB), the Army Review Boards Agency (ARBA), and the Defense Finance and Accounting Service (DFAS).
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's military records show that she enlisted in the Army Delayed Entry Program on 15 September 1992. She enlisted in the Regular Army on 7 October 1992. She served continuously through several reenlistments until her discharge on 14 March 2003, in pay grade E-4, under the provisions of Army Regulation 635-200, chapter 14, for Misconduct, with a general discharge. She was credited with 10 years, 5 months, and 8 days total active service.
3. On 12 December 2008, the ADRB determined that the characterization of the applicant's service was too harsh and recommended to grant partial relief in the form of an upgrade of the characterization of service to fully honorable. The ADRB determined that the reason for discharge was proper and equitable and voted not to change it. However, that action did not entail an award of any monetary entitlements.
4. The applicant was reissued a DD Form 214 changing her character of service to Honorable, but the narrative reason for separation remained the same.
5. In a letter, dated 30 January 2009, ARBA advised the applicant that the characterization of her discharge had been changed to honorable and that she may apply to the Commander, DFAS, for any monetary benefits to which she may be entitled by virtue of the change in her discharge.
6. In a letter, dated 13 March 2009, the DFAS advised the applicant that the change in her discharge resulted in no monetary entitlements.
7. Army Regulation 635-200 paragraph 1-6 specifies eligibility for, and payment of, separation pay (other than disability) is governed by Department of Defense Instruction 1332.29. Paragraph 1-24g(2)(c) specifies that if a member is discharged for disability, the Soldier will be entitled to severance pay.
8. Department of Defense Instruction 1332.29, section 3.4.9, specifies that a service-member separated for unsatisfactory performance or misconduct is not eligible for separation pay.
DISCUSSION AND CONCLUSIONS:
1. In view of the circumstances in this case, the applicant is not entitled to award of any monetary entitlements, i.e., severance pay or either separation pay, based on the upgrade of her discharge.
2. The evidence shows the applicant was discharged for misconduct and not for physical disability on 14 March 2003. In December 2008, the ADRB upgraded her character of service to fully honorable. The ADRB directive authorizing this action did not entail an entitlement to severance pay or any other monetary benefits. Based on her separation for misconduct, she was not entitled to separation pay. It is also noted that had the applicant been separated for physical disability reasons she may have been eligible for award of severance pay.
3. In view of the foregoing, there is no basis for granting the applicants 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.
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