IN THE CASE OF:	  

		BOARD DATE:  25 September 2012

		DOCKET NUMBER:  AR20120002872 


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 his military records be corrected to show he elected to receive non-regular retirement in lieu of disability severance pay.

2.  The applicant states:

	a.  due to an administrative error by the government he was separated with a severance package vice retired.

	b.  Soldiers who qualify for retirement are not eligible for severance pay.

	c.  the Army liaison miscalculated his qualifying years for retirement.

	d.  after separation he received a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

   e.  his Chronological Statement of Retirement Points shows he had 20 years, 7 months, and 16 days of qualifying service for retirement. 

3.  The applicant provides:

* 20-year letter
* Chronological Statement of Retirement Points



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 16 March 1959.  Having prior active service in the Regular Army and inactive service in the Army National Guard and U.S. Army Reserve (USAR), he enlisted in the USAR on 31 March 2003.  On 29 January 2006, he was ordered to active duty in support of Operation Iraqi Freedom.  

3.  His disability proceedings are not available.  

4.  On 5 September 2006, he was honorably discharged by reason of physical disability (severance pay - in the amount of $71,964.00). 

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 September 2006 shows in:

* item 25 (Separation Authority) the entry "[ARMY REGULATION] 635-40, [PARAGRAPH] 4-24B(3)"
* item 26 (Separation Code) the entry "JFL"
* item 28 (Narrative Reason for Separation) the entry "DISABILITY, SEVERANCE PAY"  

6.  On 11 April 2007, he was honorably discharged from the USAR.

7.  On 16 August 2007, he was issued a 20 year letter.

8.  His U.S. Army Human Resource Command Chronological Statement of Retirement Points, dated 8 February 2012, shows he had 20 years, 7 months, and 16 days of qualifying service for retirement. 

9.  Records at the Army Human Resources Command at Fort Knox, KY confirm he had 20 years of qualifying service for retired pay on 5 June 2006.
10.  Title 10, U.S. Code, section 1209 states any member of the armed forces who has at least 20 years of service (for a reserve retirement) and who would be qualified for disability retirement but for the fact that his disability is less than 
30 percent may elect, instead of being separated, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive (reserve) retired pay upon becoming 60 years of age.

11.  Army Regulation 635-5-1 (Separation Program Designators (SPD)), states SPD "MFR" would be used when the reason for separation was involuntary discharge due to "physical disability – other."  SPD "MFR" was to be utilized for service members who qualify for physical disability with severance pay and qualify for retirement at age 60 and elect to receive Reserve Retirement in lieu of severance pay.  When the SPD "MFR" is utilized the statement "The Soldier has been separated by reason of physical disability and has selected Reserve Retirement In-lieu of Severance:  No Severance Pay is Authorized" will be entered in item 18 (Remarks) of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that due to an administrative error by the government he was separated with a severance package vice being retired appears to have merit.

2.  He was discharged with disability severance pay ($71,694.00) on 
5 September 2006.  He was not issued is 20 year letter until 17 August 2007; however, he had completed his 20 qualifying years for a non-regular retirement on 5 June 2006.

3.  Since separation with disability severance pay occurs if the member has less than 20 years of service, and the applicant had 20 years of qualifying service for retired pay on 5 June 2006, it would be appropriate to correct his records to show he elected to receive a non-regular retirement in lieu of disability severance pay and showing he was placed on the Retired Reserve effective 6 September 2006 with entitlement to retired pay as of the date of his 60th birthday, 16 March 2019.  As a result of the above correction, his severance pay will have to be recouped.

4.  His DD Form 214 for the period ending 5 September 2006 should also be corrected to show:

   a.  he was separated due to physical disability – other with an SPD code of MFR; and 
   
   b.  the entry "The Soldier has been separated by reason of physical disability and has selected Reserve Retirement In-lieu of Severance:  No Severance Pay is Authorized" in item 18 of this DD Form 214.

BOARD VOTE:

___X____  ____X __  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 DD Form 214 for the period ending 5 September 2006 and/or any related documents to show he was separated due to physical disability – other with an SPD of MFR;

	b.  adding to item 18 of this DD Form 214 the entry "The Soldier has been separated by reason of physical disability and has selected Reserve Retirement in Lieu of Severance:  No Severance Pay is Authorized" and deleting entry "Disability Severance Pay – $71,964.00"; and

	c.  showing he was placed on the Retired Reserve effective 6 September 2006 with entitlement to retired pay as of the date of his 60th birthday, 16 March 2019.

2.  The Defense Finance and Accounting Service should recoup any disability severance pay paid to him.



      __________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)                                         AR20120002872



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ABCMR Record of Proceedings (cont)                                         AR20120002872



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