IN THE CASE OF:
BOARD DATE: 8 March 2011
DOCKET NUMBER: AR20100023301
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, correction of item 18 (Remarks) of his
DD Form 214 (Certificate of Release or Discharge from Active Duty), to show he received "$30,000.00" instead of "$40,300.00" in disability severance pay.
2. The applicant states the amount of severance pay he received is shown incorrectly on his DD Form 214 and he has been trying to correct this error for a long time.
3. The applicant provides:
* his DD Form 214
* a letter from the Defense Finance and Accounting Service (DFAS) to his Member of Congress
* his Leave and Earnings Statement (LES) for the period 1-12 June 1991
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. Having had prior enlisted service, the applicant enlisted in the Regular Army (RA) on 24 May 1977 and he held military occupational specialties 16R (Vulcan Crewmember) and 11B (Infantryman). He attained the rank/grade of staff sergeant (SSG)/E-6 during his tenure of service.
3. On 12 April 1991, a medical evaluation board (MEB) considered the applicant's clinical records and physical examinations, and determined he had a medical condition. The MEB recommended his referral to a physical evaluation board (PEB).
4. On 3 May 1991, an informal PEB determined his medical conditions rendered him unfit and recommended his separation with entitlement to severance pay. He concurred with the PEB's findings and recommendation.
5. On 3 June 1991, Orders 106-11, issued by Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, TX, reassigned the applicant to the U.S. Army Transition Point for transition processing with a reporting date and date of discharge of 12 June 1991. The additional instructions section of the orders authorized severance pay in grade E-6 based on 16 years, 6 months, and
23 days of service.
6. On 12 June 1991, he was accordingly discharged. His DD Form 214 issued at the time shows he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, and Separation), paragraph 4-24e(3). Item 18 of this form shows the entry "//Disability Severance Pay $40,300//."
7. On 12 May 2006, by letter to his Member of Congress, a DFAS official stated the applicant received disability severance pay in the amount of $30,000.00, less federal income tax withheld of $6,000.00, for a net amount of $24,000.00.
8. The "Entitlements" column of his 1-12 June 1991 LES shows he was credited with the amount of $30,000.00 ($3,333.36, $7,777.77, $8,888.88, and $9,999.99) of severance pay and the "Other Collections" column shows the amount of
$6,085.31 in Federal taxes (determined by the tax rules appropriate at the time). He received a net amount of $23,397.29 in the form of a casual pay.
9. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Item 18 is used for Department of the Army mandatory requirements when a separate block is not available. For a Soldier receiving severance, readjustment, or non-disability severance pay (as indicated by the finance office), enter type of pay and amount. This guidance was later clarified to ensure transition points were entering the gross amount of severance pay.
10. Military Personnel Message Number 06-147, dated 23 May 2006, subject: DD Form 214, Separation/Readjustment/Severance Pay (Disability or Nondisability) Annotation, states when a Soldier receives disability severance pay, the "Gross" (not NET) amount is requested from DFAS and entered in item 18 of the DD Form 214.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows the applicant was discharged by reason of physical disability with entitlement to severance pay. His gross severance pay received on 12 June 1991 was $30,000.00. His DD Form 214 inadvertently listed an incorrect amount of $40,300.00. Therefore, his DD Form 214 should be corrected to show the amount of $30,000.00 in severance pay.
BOARD VOTE:
____X___ ____X___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by
deleting from item 18 of his DD Form 214 the entry "$40,300.00" and replacing it with the entry "30,000.00."
___________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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