IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100026568 


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 his USAFAC Form 5267-R (Leave and Earnings Statement (LES)), for the period covering 1 to 5 June 1991, to show he received separation pay instead of disability severance pay.  He also requests correction of his records to show he retired in the rank and pay grade of sergeant first class (SFC)/E-7.  

2.  He states he/his:

* LES shows he received casual pay in the amount of $19,488.03 in section 8 (Other Collections) and disability severance pay in section 39 (Remarks)
* did receive separation pay, but didn’t receive any disability severance pay
* LES is in error
* wouldn’t have taken the pay if he thought it would have jeopardized his retirement
* commander, executive officer, and separation orders state that he was due separation pay
* retired rank should show SFC/E-7 as his highest grade held

3.  He provides:

* Addendum to application
* Letter from the Chief, Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis (HRC-STL), MO 
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) 
* LES for the period 1 to 5 June 1991
* Separation orders from active duty 
* Two Standard Forms 88 (Report of Medical Examination)
* Two Standard Forms 93 (Report of Medical History)
* DD Form 689 (Individual Sick Slip)
* Army National Guard (ARNG) Retirement Points History Statement
* ARNG Soldier Management Report
* Promotion orders to SFC/E-7
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter addressed to the Finance and Accounting Office, Fort  Sill, OK
* Military pay voucher and precomputation statement
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Discharge orders from the ARNG
* Retired Reserve Certificate
* Letter from a Military Personnel Technician, HRC-STL
* Letter addressed to the Commander, U.S. Army Reserve Personnel Command
* Memorandum for Record from a retired colonel
* Refund of Readjustment/Separation/Severance Pay
* Letter from a retired colonel

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 was born on 28 October 1950.  He enlisted in the ARNG on 21 April 1970.  He was promoted to sergeant (SGT) on 17 February 1976 and to staff sergeant (SSG) on 20 October 1977.  

3.  He was ordered to active duty in an Active Guard Reserve (AGR) status on 1 August 1981.  

4.  Orders 54-63, dated 21 March 1986, show he was promoted to SFC/E-7 and awarded primary military occupational specialty (MOS) 00E4O (Production Recruiter) and secondary MOS 91B4O (Medical Specialist), effective 15 March 1986.  

5.  He was issued his 20-Year Letter on 13 June 1990.  

6.  He was released from active duty and the AGR program on 5 June 1991 under the provisions of National Guard Regulation (NGR) 600-5 (The AGR Program), paragraph 6-4(8) due to failure to successfully complete Professional Development Program requirements.  He completed 9 years, 1 month, and 5 days of net active service this period and 4 months and 25 days of total prior active service.  

7.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) of his DD Form 214 shows he was separated in the rank and pay grade of SFC/E-7.  Item 18 (Remarks) of this separation document does not indicate he received separation pay.  

8.  On 22 May 1991, he underwent a physical examination and was found qualified for separation with a physical profile of 111111.  

9.  Orders 101-002, dated 29 May 1991, show he was released from active duty, not by reason of physical disability, and assigned to the State Area Command, Arkansas ARNG, effective 5 June 1991.  The additional instructions stated he was eligible for separation pay.  

10.  On 29 May 1991, he signed a form indicating he was entitled to receive readjustment/separation/severance pay in connection with his involuntary release from active duty, and he had elected to receive rather than waive payment.  He acknowledged that he understood he would be required by law to refund the pay under the conditions outlined on the form.  The first condition stated:

   “If at a future date, I qualify for receipt of length of service (20 years or more active duty) retired pay, I will be required to refund from such retired or retainer pay so much of such pay as is based on the service for which readjustment/separation/severance pay was received, until the total amount of readjustment/separation/severance pay is repaid.  I will not be entitled to receive any retired pay until the required amount of readjustment/separation/severance pay to be refunded has been collected.”



11.  His LES for the period covering 1 to 5 June 1991 shows in:

* Block 8 (Other Collections) - he received $19,488.03 casual pay
* Block 39 (Remarks) – the entries “BALANCE DUE SOLDIER TAXABLE DISABILITY SEV PAY” and “SOLDIER DUE TAXABLE DISABILITY SEV PAY”

12.  On 12 August 1991, he submitted a letter to the Finance and Accounting Office, Fort Sill, OK.  He stated he was separated from the AGR program on 6 June 1991 and received his casual pay of $19,488.03, but with very little explanation.  He requested a detailed print-out.  In response to his request, he was provided a Military Pay Voucher which indicated his basic pay was based on pay grade E-7 and he had received $19,488.03 casual pay.  

13.  Orders 035-018, dated 21 February 1992, show he was reduced from SFC to SGT and awarded primary MOS 75B2O (Personnel Administrative Specialist), effective 12 February 1992.  The orders indicated the authority for this reduction as NGR 600-200, paragraph 6-44f (involuntary separation of ARNG Enlisted Soldiers with 18 or more, but less than 20 years of qualifying service for retirement).  Orders published on 22 April 1992 amended his date of rank to SGT to 17 February 1976.  

14.  Orders 6-1, dated 18 June 1992, show he was promoted back to SSG/E-6 and was awarded primary MOS 75B3O, effective 18 June 1992.  

15.  On 6 May 1995, he underwent a physical examination for the purpose of commission.  The examining physician indicated the applicant was qualified for commission and he was given a physical profile of 111121.

16.  He was discharged from the ARNG on 22 July 1996 after completion of 26 years, 3 months, and 2 days total service and he was transferred to the Retired Reserve.  His NGB Form 22 shows he was transferred to the Retired Reserve in the rank and pay grade of SSG/E-6 with a date of rank of 18 June 1992.  

17.  In a 10 March 2000 letter, a Military Personnel Technician, HRC-STL informed the applicant that:

		a.  Advancement on the retired list pertains only to Soldiers who served on full time active duty for 20 or more years. 

		b.  When a Reserve Soldier was transferred to the Retired Reserve, it was in the grade held on the effective date of the orders.
	c.  His current grade is listed as SSG because that was the grade he held on the date of transfer to the Retired Reserves.

	d.  Reserve Soldiers were placed on the Army of the U.S. Retired List in the highest qualified grade promoted to and satisfactorily served in when they were certified for retired pay at age 60.  

18.  On 12 October 2010, the Chief, Transition and Separations Branch,
HRC-STL informed the applicant that his application for retired pay at age 60 was being returned because his LES indicated he had received disability severance pay and he was not qualified for retired pay once this type of payment was made. 

19.  His ARNG Retirement Points History Statement, dated 21 October 2010, shows he completed 26 years, 3 months, and 2 days of qualifying service for retired pay at age 60.  This statement indicated his highest grade held was E-6.  

20.  In a letter, dated 25 October 2010, a retired colonel in the applicant's chain of command stated the applicant’s separation orders indicated he was not being released from active duty by reason of physical disability and that he was eligible for separation pay.  The colonel understood that the applicant would be eligible for retired pay upon reaching age 60, but he might be subjected to repaying the separation pay.  

21.  He reached age 60 on 28 October 2010.  

22.  In a letter, dated 22 November 2010, the applicant's former ARNG commander stated he discussed the issue of separation pay with the applicant in May 1991.  He informed the applicant that he thought he was eligible for separation pay, but he should attain sufficient years for retirement pay because he may be required to reimburse the “Treasury” the amount of the separation pay.  They did not discuss the issue of disability severance pay, because he was not aware that the applicant suffered from a disability.

23.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular Service) states that a person granted retired pay will receive such pay…in the highest grade temporarily or permanently satisfactorily held by him or her during his or her entire period of service.  Service in the highest grade will not be deemed satisfactory…if it is determined that any of the following factors exist:  
(a) revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or (b) there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.

24.  Casual pay is defined as any payment made by a field disbursing officer.  A payment made to a Soldier while in an in-transit status (casual payment), separation-related payments, enlistment and reenlistment bonus payments, initial payments to enlistees, and inductees, and any other form of payment not made by the Central Defense Joint Military System site.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was ordered to active duty in an AGR status on 1 August 1981.  

2.  On 29 May 1991, he was issued orders which indicated he was released from active duty, not by reason of physical disability, effective 5 June 1991, and that he was eligible for separation pay.  

3.  He was separated from active duty under the provisions of NGR 600-5, paragraph 6-4(8) by reason of failure to successfully complete Professional Development Program requirements.  His service record is void of evidence which indicates he was separated based on a physical disability.  

4.  However, his LES for the period 1 to 5 June 1991 indicates he was due disability severance pay and that he had received $19,488.03 casual pay.  This casual pay is the amount of separation pay he received, not disability severance pay.  

5.  It appears his LES may have been erroneously coded to reflect disability severance pay instead of separation pay.  Since the available evidence does not indicate he was released due to physical disability it would be appropriate to recommend that the Defense Finance and Accounting Service (DFAS) conduct an audit of his Master Military Pay Account (MMPA) and correct his finance records to show he received “Separation Pay” vice “Disability Severance Pay” at the time of his release from active duty.  

6.  On 5 June 1991, prior to release from active duty, he acknowledged that he would be required to refund the separation pay and wouldn’t be entitled to receive any retired pay until the pay was collected.  

7.  His contention that his retired rank should show SFC/E-7 as his highest grade held is also acknowledged and determined to have merit.  

8.  The evidence of record shows he was promoted to SFC on 15 March 1986.  He was reduced from SFC to SGT on 12 February 1992.  He was given his original date of rank to SGT [i.e., 17 February 1976].  This indicates his reduction was not for prejudice or cause or misconduct.  Therefore, the highest rank he held was SFC/E-7.  

9.  As a matter of equity, his records should be corrected to show he retired in the rank and pay grade of SFC/E-7.

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:

   a.  correcting his finance records to show he received “Separation Pay” vice “Disability Severance Pay” at the time of release from active duty and DFAS conducting an audit of the individual's MMPA to ensure this correction is properly noted; and
   
   b.  showing he was placed on the Retired List in the rank and pay grade of SFC/E-7 and paying him any back retired pay due as a result of this correction.  



      _______ _   _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)                                         AR20100026568



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ABCMR Record of Proceedings (cont)                                         AR20100026568



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