IN THE CASE OF:
BOARD DATE: 25 June 2013
DOCKET NUMBER: AR20120021119
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 reconsideration of his request for an increase of disability severance pay.
2. The applicant states his disability severance pay should have been calculated using the revisions set forth in the Fiscal Year (FY) 2008 National Defense Authorization Act (NDAA), Section 1646 making him eligible for a significantly higher level of disability severance pay.
3. The applicant provides:
* his prior Army Board for Correction of Military Records (ABCMR) decisional document
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A highlighted excerpt from the FY 2008 NDAA, Section 1646
* Physical Evaluation Board (PEB) Student Handbook
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120003728, on 6 September 2012.
2. The applicant's contention that his disability severance pay should have been calculated using the revisions set forth in FY 2008 NDAA, Section 1646 constitutes new evidence and/or argument warranting a review.
3. On 14 June 2010, a Physical Evaluation Board determined the applicant was physically unfit for duty and recommended that he be separated with severance pay with a 10 percent disability rating.
4. The applicant was discharged due to disability, severance pay with a
10 percent disability rating, in the rank of sergeant first class. He had completed 16 years, 3 months, and 19 days of active service and 3 years, 4 months, and
13 days of inactive service. He was authorized $98,056.80 in disability severance pay.
5. His separation orders show he was authorized disability severance pay in pay grade E-7 based on 16 years, 6 months, 5 days of service.
6. The version of the DOD Instruction 1332.39 utilized in the prior decisional document was published in 1996. It states:
"disability ratings can range from 0 to 100 percent rising in increments of 10. Separation with disability severance pay occurs if the member is found unfit, has less than 20 years of service, and has a disability rating of less than 30 percent. Disability severance pay equals 2 months of basic pay for each year of service not to exceed 12 years."
7. FY 2008 NDAA, Section 1646 (Enhancement of Disability Severance Pay for Members of the Armed Forces) provided changes to Section 1212 of Title 10, United States Code by:
a. striking "his years of service, but not more than 12, computed under Section 1208 of this title" and inserting "the member's years of service computed under Section 1208 of this title (subject to the minimum and maximum years of service provided for in subsection (c))";
b. inserting a new subsection (c)(3) "The maximum years of service of a member for purposes of subsection (a)(1) shall be 19 years."
DISCUSSION AND CONCLUSIONS:
1. The version of DODI 1332.39 contained in the DOD electronic index and utilized in the prior decisional document was published in 1996.
2. The FY 2008 NDAA, Section 1646 made significant changes to service members' entitlements which directly affect the monetary amount of disability severance pay that a service member can receive.
3. The applicant is correct, based on the FY 2008 NDAA changes to the maximum number of years of service utilized for calculating disability severance pay, the prior decisional document incorrectly denied his request.
4. The applicant had over 16 years, 6 months, 5 days of active service and 3 years, 4 months, and 13 days of inactive service. It appears he may have been paid disability severance pay based on the incorrect application of the old regulation limiting the maximum number of years for pay to 12 years. It would be appropriate to correct this error and afford him the correct calculation based on the changes directed by FY 2008 NDAA.
5. Therefore, the Defense Finance and Accounting Service (DFAS) should review the applicant's pay records, recalculate his pay based the revised maximum number of years of service, afford him a copy of that audit, and pay him any additional monies owed less appropriate taxes.
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 amendment of the ABCMRs decision in Docket Number AR20120003728, dated 6 September 2012. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing the applicant's disability severance pay was calculated under the provisions of the FY 2008 NDAA, Section 1646, with the appropriate number of years of service; and
b. recalculating his pay based the revised allowable years of service, providing him a copy of the results of the recalculation, and paying him any monies due, if any additional monies are due, less the appropriate taxes.
____________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) AR20120021119
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ABCMR Record of Proceedings (cont) AR20120021119
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