IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090010970
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, that the separation pay he received in 1983 not be recouped.
2. The applicant states, in effect, that severance pay by nature is for transitioning from military life to civilian live. Those individuals who continue to serve are penalized and those who do not are not.
3. The applicant provides copies of a recoupment letter from the Defense Finance and Accounting Service (DFAS) and his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 1 December 1948 and served in the Regular Army from 14 May 1971 through 15 November 1983.
2. On 5 August 1983, the applicant was notified that he was a two time nonselect for promotion to major and would be discharged no later than 1 February 1984.
3. While pending discharge, the applicant applied for and was selected for appointment in the U.S. Army Reserve (USAR) in the rank of captain. Based on this appointment he requested and received an early separation from active duty.
4. The applicant's DD Form 214 shows he was discharged on 15 November 1983 for "failure of selection for permanent promotion" and he received lump-sum separation pay in the amount of $30,000.00.
5. The record shows the applicant was appointed a captain in the USAR on the same date of his discharge and he served honorably in an active Reserve status, attaining the rank of lieutenant colonel.
6. On 18 June 1993, the applicant received a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).
7. The applicant was nonselected for promotion to colonel for a fourth time on 18 February 1998.
8. The applicant was transferred to the Retired Reserve on 18 May 2000.
9. In December 2008, upon attaining age 60, the applicant applied for and began receiving retired pay.
10. On 14 February 2009, DFAS notified the applicant that he received a lump-sum payment in the amount of $30.000.00 at the time of separation from active duty. Now that he qualified for and was in receipt of retired pay, the separation pay that he received had to be recouped from his retired pay.
11. Additionally, the DFAS letter indicated that in some cases the payments received are not recoupable and the applicant was asked to provide additional information and documentation. There is no evidence available to show whether the applicant provided any additional information.
12. Title 10, U.S. Code 1174 states that a regular officer who is discharged and has completed six or more, but less than twenty years of active service immediately before that discharge is entitled to separation pay. However, a member who has received separation pay, severance pay, or readjustment pay under any provision of law, based on service in the armed forces, and who later qualifies for retired or retainer pay shall have deducted from each payment of such retired or retainer pay so much of such pay as is based on the service for which they received separation pay under this section or separation pay, severance pay, or readjustment pay under any other provision of law until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay received.
13. 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 Army Board for Correction of Military Records (ABCMR) to direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant states, in effect, that severance pay by nature is for transitioning from military life to civilian live. Those individuals who continue to serve are penalized and those who do not are not.
2. Whether or not it is fair (equitable) for the Government to have this recoupment provision in the law is not an issue the Board has the authority to address and there is no provision for the Board to circumvent the law requiring recoupment of separation pay based on the applicant's circumstances.
3. Based on the available evidence no material error or an injustice occurred, the actions by DFAS to recoup the applicant's separation pay from his retired pay is appropriate based on the law and the applicant's circumstances.
4. 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.
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