BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110010800 


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 payment of separation pay.

2.  The applicant states he did not receive separation pay and feels he is entitled to it.  He further states that military members who are involuntarily separated from the military may be entitled to involuntary separation pay, provided they have served for 6 or more, but less than 20, years of active service.

3.  The applicant provides no additional evidence.

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 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.  Having prior service in the Army National Guard and U.S. Army Reserve, the applicant enlisted in the Regular Army on 7 January 1998.  He completed training and was awarded military occupational specialty 88K (Watercraft Operator).

3.  On 20 May 2003, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c for misconduct, with a general, under honorable conditions discharge.  He attained the rank/grade of specialist (SPC)/E-4.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed
5 years, 4 months, and 14 days of creditable active service during this period of service.  It shows he had 7 months and 13 days of total prior active service for a total of 5 years, 11 months, and 27 days of service.

4.  On 11 June 2005, he enlisted in the Virginia Army National Guard (VAARNG).

5.  On 2 August 2006, he was ordered to active duty in support of Operation Enduring Freedom (Kosovo Force (KFOR)) in accordance with Title 10,
U.S. Code, section 12302 (Ready Reserve).

6.  On 4 December 2007, he was honorably separated under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 5-13 for a personality disorder.  The
DD Form 214 he was issued for this period of service shows he completed
1 year, 4 months, and 3 days of net active service this period.  It further shows he had 6 years, 5 months, and 24 days of prior active service.  His DD Form 214 does not address his entitlement to separation pay.

7.  On 2 March 2008, he was honorably discharged from the VAARNG and as a Reserve of the Army at the expiration of his term of service, in the rank/grade of SPC/E-4.

8.  Department of the Army Circular 635-92-1 (Separation Pay) outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by Department of Defense Instruction (DODI) 1332.29, dated 20 June 1991, and other Department of the Army guidance resulting from Public Law
101-510.  To be eligible for separation pay and benefits, the Soldier must meet certain criteria, including but not limited to:

	a.  The Soldier must have served on active duty, or full-time National Guard duty, and have completed at least 6, but fewer than 20 years of active service.  This service need not be consecutive; however, for Reserve component personnel not on the active duty list when separated, 6 years of continuous 

active duty or full-time National Guard duty must have preceded immediately before such separation (emphasis added).  A period of active duty is continuous if any break in military service does not exceed 30 days.

	b.  The Soldier's separation must have been characterized as Honorable (full separation pay) or Under Honorable Conditions (General) (half separation pay).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to separation pay based on his cumulative total of active service performed.

2.  Department of the Army Circular 635-92-1 requires that for Reserve component personnel not on the active duty list (applies to commissioned officers) when separated, 6 years of continuous active duty or full-time National Guard duty must have preceded immediately before such separation.   While the applicant was on an active duty tour when he was separated, he was nonetheless still a member of the Reserve component, and was therefore subject to the additional requirement that his service be consecutive.

3.  The evidence of record shows the applicant was credited with completing over 6 years of active service; however, his two periods of service were separated by more than 3 years break in service.  Therefore, his 6 years of active duty were not consecutive.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief in this case.

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)                                         AR20100025664



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ABCMR Record of Proceedings (cont)                                         AR20110010800



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