IN THE CASE OF:	  

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110011624 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the highest grade held as specialist (SPC)/E-4 and relief from the 6-year barring statute in order to receive payment for severance pay at the rate for pay grade E-4.

2.  The applicant states, in effect, she never received notification of the board [Army Grade Determination Review Board (AGDRB)] determination because it was not sent to the address listed on her DD Form 214 and therefore, was never forwarded to her after she moved to Nashville, TN.  She has been diagnosed with bipolar disorder and is currently being treated with psychiatric medication.  The applicant contends she has been in and out of the Department of Veterans Affairs Medical Center and mental health wards on numerous occasions since her discharge in 1992.  She only became aware of the board's decision on 29 September 2010 when she received a copy of the AGDRB Case Report and Directive AG92-00036.

3.  The applicant provides:

* DD Form 214 effective 7 July 1992
* Chief, Physical Disability, U.S. Total Army Personnel Command [currently known as the U.S. Army Human Resources Command (HRC)], memorandum, dated 28 August 1992
* Army Board of Correction of Military Records (ABCMR) denial memorandum, dated 9 December 1994
* AGDRB Case Report and Directive AG92-00036, dated 20 August 1992
* Tennessee Valley Healthcare System Progress Note printed on 1 August 2008
* Mental Health Cooperative, Incorporated, letter, dated 26 March 2009
* ABCMR memorandum, dated 2 May 2011
* Department of the Navy Board for Correction of Naval Records Transmittal Record, dated 29 September 2010

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.  The staff of the ABCMR contacted the Defense Finance and Accounting Service (DFAS) and the applicant's pay records show she was paid severance pay in the amount of $29,188.80 (before Federal income tax) at pay grade E-4.  Therefore, her request to be paid an adjustment in severance pay is not valid and will not be considered by the board because there is no apparent error or injustice.

3.  The applicant's record shows she enlisted in the Regular Army on 20 August 1980.  The highest rank/pay grade held was sergeant (SGT)/E-5.  She was reduced in grade on two separate occasions:

* 2 March 1981, from E-2 to E-1, nonjudicial punishment (NJP)
* 8 January 1992, from E-5 to E-1, general court-martial

4.  She was honorably discharged by reason of physical disability with severance pay on 7 July 1992 in the rank and pay grade of private/E-1.

5.  On 20 August 1992, the AGDRB determined she did not serve satisfactorily at the highest grade held (SGT/E-5) and should be separated in the interim grade of E-4.

6.  On 16 November 1994, the ABCMR denied her request for an increase in her Army Disability rating to 30 percent or more and to be retired in the rank of SGT.  This case contains an advisory opinion from the U.S. Army Physical Disability Agency which recommends, in part, that her case be forwarded to HRC for a review of the proper rank recorded on her DD Form 214 and the use of rank for determination of severance pay.

7.  The ABCMR found her entitlement to severance pay to be correct and in accordance with the law and regulation.  Further, her conviction by general court-martial of willfully and wrongfully damaging the property of another Soldier and of pointing a loaded firearm at another Soldier and robbing him by demanding that he write two personal checks having a total value of $1000.00 negated her contention that she served satisfactorily in the rank.  The analyst did note that the AGDRB determined that she satisfactorily served in pay grade E-4 and because this determination was made 4 days prior to her application to the ABCMR, it was presumed that the correction was made and her disability severance pay entitlement amount was adjusted accordingly.

8.  On 9 September 2009, she applied to the ABCMR for correction of her DD Form 214 to show she was separated in pay grade E-4.  On 2 May 2011, her request was administratively closed because the AGDRB had previously determined that she served satisfactorily in pay grade E-4 and directed that her records be corrected to show she was separated in pay grade E-4.

9.  On 9 July 2011, DFAS returned the applicant's claim for adjustment of severance pay from E-1 to E-4 citing the 6-year barring statute.

10.  There is no evidence she was issued a DD Form 215 (Correction to DD Form 214) or any other document to show she was separated in pay grade E-4.

11.  Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the government.  In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim.  Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims.  In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement.

12.  Army Regulation 635-5 (Separation Documents) states to enter the grade in which the enlisted Soldier was serving at the time of separation in item 4a (Grade, Rate, or Rank) and the pay grade in item 4b (Pay Grade).

13.  The Military Pay Table effective 1 January 1992 shows an E-4 had a base pay of $1216.20.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the AGDRB approved a grade determination for the applicant to the rank/pay grade of SPC/E-4 based on her overall service for the purpose of determining her disability severance pay is not sufficient justification to change her rank/grade on her DD Form 214.

2.  The evidence of record shows she was reduced in rank on two separate occasions, first by NJP and later by general court-martial.  The correction directed by the AGDRB states she would be separated in pay grade E-4 and as it relates to her DD Form 214 is slightly ambiguous.  Regulatory guidance states to show the grade in which the enlisted Soldier was serving at the time of separation, which in her case was E-1 and is correctly shown on her DD Form 214.  The correction of record should only apply to her pay record.

3.  A copy of the Disability Severance Pay Computation sheet showing her severance pay calculation is enclosed.  The ABCMR cannot direct an audit of her pay records when there is no evidence of an error or injustice; therefore, she should contact DFAS if she still contends she was paid severance pay at the rate for pay grade E-1.

4.  In view of the above, her request should be denied.

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 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)                                         AR20110011624



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011624



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1