IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100020511 


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 his debt ($93, 918.37) be remitted.

2.  The applicant states:

* An agreement stated he would not be allowed back on active duty in exchange for a bonus
* He was ordered back on active duty for the Iraq War which completely invalidated the agreement
* His career track was interrupted at age 55 and he was called back to active duty and sent to Kuwait/Iraq
* He was informed on 26 April 2010 there was reportedly a debt of $93,918.37  

3.  The applicant provides:

* active duty orders, dated 10 February 2003
* letter, dated 28 July 2010, from a Member of Congress

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Air Force, inactive enlisted service in the Army National Guard and Air Force Reserve, and commissioned service in the Air Force Reserve, he was appointed a captain in the U.S Army Reserve (USAR) on 28 May 1985.  He was ordered to active duty on 1 June 1985.  

2.  Separation orders, dated 30 June 1994, show he was approved for SSB [Special Separation Benefit] and his SSB Reserve commitment was 
28 September 1997.  These orders also state "Soldiers who receive VSI [Voluntary Separation Incentive]]/SSB based on services in the Armed Forces, and subsequently qualify under 10 USC or 14 USC for retired or retained pay shall have deducted an amount that will be recouped from each to the amount of VS/SSB Pay not previously recouped.  This amount will be recouped from each payment of retired or retainer pay until the total amount deducted is equal to the amount of VSI/SSB received."  

3.  On 29 September 1994, he was released from active duty under the provisions of Army Regulation 635-120, chapter 3, under the Early Release Program – SSB and transferred to the USAR Control Group (Reinforcement).  His SSB payment was $93,916.78.  

4.  He was promoted to colonel on 29 November 2001.  

5.  Orders, dated 10 February 2003, show he was ordered to active duty on 
11 February 2003 in support of Operation Enduring Freedom for a period not to exceed 364 days unless extended or terminated by proper authority.  He served in Kuwait and Iraq and was released from active duty on 9 February 2007 after completing 3 years, 11 months, and 29 days of creditable active service.  

6.  He turned age 60 on 21 June 2008.

7.  A letter, dated 26 April 2010, from the Defense Finance and Accounting Service states, in pertinent part, he has a current outstanding balance of $93,918.37 and deductions from his retired pay to recoup SSB payments he received as a result of his previous separation from active duty would soon begin.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.  That office recommends the applicant's debt be recouped.  The opinion points out the applicant received separation pay under the SSB program when he separated in 1994.  Now that he qualifies for retired pay, Title 10 U.S. Code; section 1174(h)(1) prohibits the duplication of benefits for the same period of service.  His separation order dated 30 June 1994 included a statement to inform him that SSB amount shall be deducted if he later qualifies for retired pay. 


9.  The opinion also states the applicant documented on his application that he was ordered to active duty and alluded to an "agreement" that would allow him back on active duty in exchange for a bonus.  That office is not aware of any such documentation.  Moreover, he did not provide a copy of the "agreement" for consideration.  Based on the initial active duty order dated 10 February 2003 he volunteered to serve and subsequently extended to accumulate 3 years, 11 months, and 29 days on active duty as depicted on his DD Form 214.

10.  A copy of the advisory opinion was provided to the applicant to provide comment or rebuttal.  On 1 March 2011, he responded.  In summary he stated:

* when he left active duty in 1994 he was not briefed on the SSB ramifications but was only told he would not be allowed to reenter active duty
* looking back on the event he would have thought the Army would have developed forms, checklists, counseling sessions, procedures to ensure that prospective SSB takers knew, among other things, the long term consequences of accepting this "bonus"
* it is now apparent to him the MILPO did not properly implement the law so he could make an informed choice to take the SSB
* in 2003 the Army ordered him back to active duty and sent him to Iraq, still not briefing him on the status of the SSB
* it was not mentioned on his orders
* he served his time in Iraq and retired from the USAR
* he drew his retired pay for two years without incident
* now he has been informed that a decision was made to recoup the amount paid to him plus the Federal taxes he paid
* with no choice but to report to active duty in 2003 this statute is unfair and the debt should be expunged   

11.  The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown.  These incentive programs were designed to induce members of the Armed Forces to leave the military voluntarily.  Under both of the programs, the VSI and the SSB, qualifying service members who voluntarily left active duty before their retirement vested received benefits based on their salary at the time of separation and on years of service.  Under the SSB, an eligible member would receive a lump sum payment equal to 15 percent of the Soldier’s annual basic pay multiplied by his years of active service.  Soldiers who applied for this incentive were required to enter into a written agreement to serve in the Ready Reserve for a period of not less than 
3 years, in addition to any remaining military service obligation based in statute, following the separation from active duty.  

12.  ALARACT [All Army Activities] Message, dated December 1991, pertaining to voluntary incentive programs states, in pertinent part, Soldiers who receive SSB and who subsequently serve on active duty, Reserve duty in a pay status, or inactive duty for training shall not forfeit any SSB or compensation received; and Soldiers who have received SSB and who subsequently qualify for retired pay shall have deducted from their retired pay a proportionate amount based on the service for which SSB was received.  The total amount deducted is equal to the total amount of SSB received.

13.  Title 10, U.S. Code, section 1174(h)(1) states a member who has received separation pay under this section, or separation pay, severance pay, or readjustment pay under any other provision of law, based on service in the Armed Forces, and who later qualifies for retired or retainer pay under this title or title 14 shall have deducted from each payment of such retired or retainer pay an amount, in such schedule of monthly installments as the Secretary of Defense shall specify, taking into account the financial ability of the member to pay and avoiding the imposition of undue financial hardship on the member and member’s dependents, until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay so paid. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows he was released from active duty on 29 September 1994 under the SSB program and he received $93,916.78.  

2.  He contends he was not briefed on the SSB ramifications when he was released from active duty in 1994 and was only told he would not be allowed to reenter active duty.  However, his June 1994 separation orders state the SSB amount would be deducted if he later qualified for retired pay.  Also, a 1991 ALARACT message provided guidance on the SSB which stated Soldiers who had received SSB and subsequently qualified for retired pay would have pay deduced from their retired pay.  In addition, since the 1991 ALARACT message addresses Soldiers who receive SSB and who subsequently serve on active duty, his contention he was told he would not be allowed to reenter active duty is moot.   

3.  He alluded to an "agreement" that would not allow him back on active duty in exchange for a bonus and when he was ordered to active duty in 2003 the agreement was invalidated.  However, he failed to provide this agreement for consideration.    


4.  The evidence of record supports his contention that his career track was interrupted at age 55 and he was called back to active duty.  Orders show he was ordered to active duty on 11 February 2003 for a period of 365 days unless extended or terminated.  It appears he extended this period of service since he was released from active duty on 9 February 2007 after completing a total of 
3 years, 11 months, and 29 days.  

5.  By law, the duplication of separation pay and retired pay for the same period of service is prohibited.  Therefore, there is no basis for granting the applicant's request.    

6.  In order to justify correction of a military record, the applicant must show 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.



ABCMR Record of Proceedings (cont)                                         AR20100020511





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ABCMR Record of Proceedings (cont)                                         AR20100020511



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