BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090019150 


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 her records to show she was authorized separation pay upon her discharge in January 1990.

2.  The applicant states she was discharged for failure to meet body fat standards and placement on the Army Weight Control Program (AWCP).  

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 January 1990; a copy of her January 1990 Leave and Earnings Statement; an extract of the Department of Defense (DOD) Financial Management Regulation; a copy of her separation packet; and a copy of her Bar to Reenlistment Certificate, dated 19 December 1989.

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 she enlisted in the Regular Army (RA) on 25 August 1981 and held military occupational specialty 76P (Materiel Control and Accounting Specialist).  Her records also show she executed a 5-year reenlistment on 24 August 1984 and attained the rank/grade of specialist/E-4.  She was assigned to the 2nd Support Company, Fort Bragg, NC.

3.  On 30 March 1989, she was enrolled in the AWCP.  

4.  On 19 December 1989, her immediate commander initiated a Bar to Reenlistment Certificate against her citing her failure to meet body fat standards. She was furnished with a copy of this bar but elected not submit a statement on her own behalf.

5.  On 19 December 1989, her immediate commander initiated separation action against her under the provisions of chapter 5-15 of Army Regulation 635-200 (Personnel Separations) by reason of failure to meet body fat standards.  She acknowledged receipt of this notification on the same date.

6.  On 26 December 1989, the separation authority approved her discharge and directed she receive an honorable character of service.  Accordingly, she was honorably discharged on 10 January 1990.  The DD Form 214 she was issued shows she completed 8 years, 4 months, and 16 days of creditable active service.  Item 26 (Separation Code) shows the entry "JFV" and item 27 (Reenlistment Code) shows the entry "RE-3C."

7.  Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by DOD Instruction 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 separations 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 Department of the Army Form 7154-R (Agreement to Join Ready Reserve) for a period of not less than 3 years.

8.  Chapter 35 of the DOD Financial Management Regulation, Volume 7, provides for full or half payment of non-disability separation pay:

	a.  Effective 20 June 1991, full payment of non-disability separation pay has been authorized to Military Service members of the RA and Reserve Components (RC) who have been involuntarily separated from active duty and have met each of the following four conditions:  The member is on active duty and has completed at least 6 years, but less than 20 years, of active service; the member’s separation must be characterized as honorable; the member who is separated involuntarily through the denial of reenlistment must be fully qualified for retention but denied reenlistment; and the member must have entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a RC for a minimum period of 3 years following the separation from active duty.  

	b.  Effective 20 June 1991, half payment of non-disability separation pay has been authorized to Military Service members of the RA and RC who involuntarily have separated from active duty and have met each of the following four conditions:  The member’s separation must be characterized as honorable or general, the member must be separated involuntarily by the Military Service concerned through either the denial of reenlistment due to weight control failure; and the member must have entered into a written agreement with the Military Service concerned to serve in the Ready Reserve for a minimum period of 3 years following separation from active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be authorized separation pay.

2.  The applicant was discharged from active duty on 10 January 1990 under the provisions of chapter 5-15 of Army Regulation 635-200 by reason of failure of body fat standards.  

3.  The law authorized full or half payment of separation pay, effective 20 June 1991, for those members denied reenlistment if otherwise qualified and met other conditions.  She was discharged on 10 January 1990, prior to the effective date of this law.  Therefore, she would not have been entitled to separation pay.

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)                                         AR20090019150



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ABCMR Record of Proceedings (cont)                                         AR20090019150



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