IN THE CASE OF:
BOARD DATE: 5 February 2013
DOCKET NUMBER: AR20120012559
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, the entries "SEPARATION PAY - - $9761.40" and "MEMBER IS ENTITLED TO HALF INVOLUNTARY SEPARATION PAY" be removed from item 18 (Remarks) of her DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states:
* Her Individual Ready Reserve (IRR) orders were rescinded after her discharge and she never received any separation pay nor did she obtain a copy of the rescinded orders
* She called Hawaii to find out what happened and was told due to her pregnancy her orders were rescinded and she was not going to receive the separation pay
* This error on her DD Form 214 is preventing full payment of her Department of Veterans Affairs disability payment
3. The applicant provides:
* W-2 Wage and Tax Statement for 2009
* Leave and Earnings Statement (LES)
* DD Form 214
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 applicants 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 applicants 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 21 February 2002. She completed her training and was awarded military occupational specialty (MOS) 35F (intelligence analyst) and MOS 35P (cryptologic linguist). She served in Korea and Iraq. On 1 May 2009, she was honorably discharged for pregnancy or childbirth.
3. Item 18 of her DD Form 214 shows, among other entries, the following entries:
* SEPARATION PAY- - $9761.40
* MEMBER IS ENTITLED TO HALF INVOLUNTARY SEPARATION PAY
4. Her LES covering the period 1-31 May 2009 does not show she received separation pay in the amount of $9761.40.
5. The Defense Finance and Accounting Service (DFAS) confirmed she did not receive separation pay.
6. The Department of Defense Financial Management Regulation shows to be eligible for separation pay, a Soldier must have:
* completed at least 6 years but fewer than 20 years of active service
* received a service characterization of honorable or under honorable conditions (general)
* signed a written agreement to serve 3 years in the Ready Reserve
* completed an initial term of enlistment
* been involuntarily separated or denied reenlistment
7. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. It shows that a pregnancy separation is a voluntary discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's DD Form 214 shows she received separation pay in the amount of $9761.40 and that she is entitled to half involuntary separation pay.
2. Her contention she never received any separation pay appears to have merit.
3. In order to be eligible for separation pay a Soldier must have been involuntarily separated and signed a written agreement to serve 3 years in the Ready Reserve. Evidence shows she was honorably discharged for pregnancy or childbirth. A pregnancy separation is a voluntary discharge.
4. Since DFAS records confirm she did not receive separation pay, and her LES covering the period 1-31 May 2009 does not show she received separation pay, it would be equitable to remove the entries "SEPARATION PAY - - $9761.40" and "MEMBER IS ENTITLED TO HALF INVOLUNTARY SEPARATION PAY" from item 18 of her DD Form 214.
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 deleting the entries "SEPARATION PAY - - $9761.40" and "MEMBER IS
ENTITLED TO HALF INVOLUNTARY SEPARATION PAY" from item 18 of her DD Form 214.
_______ _ _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) AR20120012559
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ABCMR Record of Proceedings (cont) AR20120012559
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