IN THE CASE OF:	  

		BOARD DATE:	    16 June 2011

		DOCKET NUMBER:  AR20100025206 


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 he be shown to be entitled to Reserve Retired Pay in lieu of disability severance pay or that he be shown to be entitled to a larger monetary amount of severance pay.

2.  The applicant states he was separated with disability severance pay based on 14 years of service, which he is paying back.  He does not believe his Reserve and Guard time were taken into account. 

3.  The applicant provides copies of three DD Forms 214 (Report of Transfer or Discharge), three statements of Reserve Points, DD Form 108 (Application For Retired Pay), DD Form 2656 (Data for Payment of Retired Personnel), two Department of Veterans Affairs (DVA) disability award letters, and an Army Human Resources Command (HRC) denial letter.

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 enlisted in the Regular Army on 29 April 1969 and served on active duty until 13 December 1973.  He was commissioned an Army National Guard Chaplain on 29 March 1976 and served in that capacity until appointed a U.S. Army Reserve (USAR) chaplain.  He entered active duty as a USAR chaplain on 15 August 1982, and served on active duty until he was discharged on 16 July 1996. 

3.  During the latter portion of his period on active duty the applicant developed back problems which deteriorated to the point that a Physical Evaluation Board (PEB) found him unfit for continued active service.  The applicant concurred with the PEB determination.  He was afforded a 20 percent disability evaluation for this condition and discharged with severance pay.  

4.  The applicant's 16 July 1996 DD Form 214 provides the following:

	a.  a date of birth - 26 November 1948;

	b.  service on active duty for this period - 13 years, 11 months, and 2 days; 

	c.  prior active duty - 4 years, 7 months, and 15 days; 

	d.  prior inactive service - 6 years, 8 months and 4 days; 

	e.  separation - discharge for physical disability with severance pay; and

	f.  severance pay - $87,696.00.  

5.  On 3 December 1996, the DVA awarded the applicant a combined 30 percent disability evaluation as follows:  20 percent for degenerative joint disease, 10 percent for a post operative septoplasty, and 0 percent for a left shoulder impingement.  He was notified at this time that the monetary amount for his back condition would be withheld until the full amount of severance pay was recovered.

6.  On 20 August 2010, the applicant applied for Retired Pay benefits.

7.  On 13 September 2010, HRC denied his request for eligibility to Reserve Retired Pay based on the fact that he had received disability severance pay and was not entitled to dual compensation.
8.  38 Code of Federal Regulation (CFR) 3.700 prohibits duplication of payments from the DVA for disability compensation when a veteran had received disability severance pay under Title 10, U.S. Code, subsection 1174 (10 U.S.C. §1174).  

9.  10 U.S.C. § 1174 (h)(2), states that a service member who has received separation pay under this section, or under any other provision of law, based on service in the Armed Forces shall not be deprived, by reason of his receipt of such separation pay, severance pay, or readjustment pay, of any disability compensation to which he is entitled under the laws administered by the DVA, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay, severance pay, and readjustment pay received.

10.  10 U.S.C. § 1213, states that a person who has received disability severance pay from the Armed Forces is not entitled to any payment under any other provision of the law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was separated with disability severance pay based on 14 years of service, which he is paying back.  He does not believe his Reserve and Guard time were taken into account. 

2.  At the time of his discharge he is shown to have had a total of 18 years, 6 months, and 17 days of active duty, with 6 years, 8 months, and 4 days of inactive service.  The 14 years he refers to is only that portion of his service covered by his last DD Form 214.

3.  The applicant accepted a discharge with disability severance pay in 1996.  In so doing he forfeited any consideration for receipt of any retired pay based on longevity.  

4.  The VA is currently recouping the amount of his severance pay from his VA compensation entitlements.  In accordance with Federal law the applicant is not entitled to receipt of both severance pay and VA disability compensation for the same disability.

5.  The record does not show and the applicant has not provided any evidence that his disability severance pay was not based on a total number of years of service shown on his final DD Form 214.  If he still believes that an error was 
made in the calculations of the monetary amount owed him at separation, he should request an audit of his pay calculations from the Defense Finance and Accounting Service.
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)                                         AR20100025206





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ABCMR Record of Proceedings (cont)                                         AR20100025206



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