IN THE CASE OF:	

		BOARD DATE:	  20 August 2014

		DOCKET NUMBER:  AR20130018986 


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 receipt of involuntary separation pay.

2.  The applicant states:

	a.  he was not authorized separation pay due to an incorrect calculation of his active duty service;

	b.  Fort Myer and Fort Belvoir Army Finance officials informed him that the time to correct his pay record expired and advised him to apply to the Army Board for Correction of Military Records (ABCMR); and

   c.  he has orders confirming he met the total time in service requirement thereby establishing his entitlement to full separation pay.

3.  The applicant provides:

* six active duty orders
* six amendment orders
* revocation/rescission order
* DD Form 214 (Certificate of Release or Discharge from Active Duty) issued 11 January 2007 and 30 June 2013
* National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Point History Statement)
* two self-authored statements

CONSIDERATION OF EVIDENCE:

1.  On 1 June 1985, the applicant was appointed a second lieutenant (2LT) in the U.S. Army Reserve (USAR).  On 16 July 1985, he was relieved from the USAR Control Group and on 17 July 1985, he was voluntarily assigned to the Puerto Rico Army National Guard (PRARNG) and swore his oath of office.

2.  He completed his initial active duty training from 18 June through 7 October 1988, and was awarded area of concentration 11A (Infantry).  The DD Form 214 issued to him at that time shows he completed 3 months and 20 days of creditable active duty service.

3.  He served in the PRARNG in various positions and on 8 May 2002, he was promoted to major (MAJ).

4.  Orders 006-003, issued by the PRARNG on 12 January 2006, ordered him to active duty in support of Joint Task Force Headquarters Civil Support.  

5.  On 11 January 2007, he was honorably REFRAD and returned to the control of the PRARNG.  The DD Form 214 issued to him at that time shows he completed 1 year of active duty service for the period it covered.

6.  Item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record – Part II) confirms he was REFRAD on 11 January 2007.  Item 27 (Remarks) shows he reviewed this document on 30 June 2009, and he indicated the information contained thereon was correct and complete.

7.  An NGB Form 23B, dated 18 January 2013, shows he served as an ARNG unit member from 12 January through 10 July 2007, which equates to 5 months and 29 days service.  It also shows he commenced active duty under Title 32, USC, on 11 July 2007.

8.  The PRARNG Element, Joint Forces Headquarters, published the following assignment and amendment orders that show he was ordered to active duty during the period 11 July 2007 through 14 January 2009, as indicated:

	a.  Orders 196-001, dated 15 July 2007, ordered him to active duty in an active duty for special work (ADSM) capacity, during the period 11 July 2007 through 9 July 2008;

	b.  Orders 299-017, dated 26 October 2007, amended Orders 196-001 by changing his period of active duty from 11 July 2007 through 9 July 2008 to      11 July 2007 through 30 September 2007;
	c.  Orders 299-018, dated 26 October 2007, ordered him to active duty in an ADSW capacity, during the period 1 October 2007 through 30 September 2008;

	d.  Orders 274-014, dated 30 September 2008, ordered him to active duty in an ADSW capacity, during the period 1 October 2008 through 30 September 2009;

	e.  Orders 318-255, dated 13 November 2008, amended Orders 274-014 by changing his period of active duty from 1 October 2008 through 30 November 2008 (Orders 274-014 actually specify 30 November 2009) to 1 October 2008 through 30 November 2008;

	f.  Orders 329-054, dated 24 November 2008, ordered him to active duty in an ADSW capacity, during the period 1 December 2008 through 30 September 2009;

	g.  Orders 020-069, dated 20 January 2009, amended Orders 329-054 by changing his period of active duty from 1 December 2008 through 30 September 2009 to 1 December 2008 through 14 January 2009.

9.  Orders 7-4, issued by NGB on 7 January 2009, ordered him to active duty in an Active Guard Reserve (AGR) status, for a 3-year term, effective 15 January 2009.

10.  Orders 362-11, issued by NGB on 28 December 2011, amended Orders 7-4 by changing his period of active duty from 15 January 2009 through 14 January 2012 to 29 June 2010 through 30 June 2013.  It is unclear how this order affects his active duty status during the period 15 January 2009 through 28 June 2010.

11.  Orders 45-24, issued by NGB on 14 February 2013, rescinded the unexecuted portion of Orders #7-4, dated 7 January 2009.  It also ordered his REFRAD on 30 June 2013, and indicated his total active federal service was 8 years, 11 months, and 24 days.  

12.  Orders 56-8, issued by NGB on 25 February 2013, amended Orders 45-24 by showing he was entitled, upon his REFRAD, to full separation pay.

13.  On 30 June 2013, he was honorably REFRAD and returned to the control of the PRARNG.  The DD Form 214 he was issued at that time shows:

	a.  Item 11 (Primary Specialty) he served in AOC 11A for 7 years and 5 months;

	b.  Item 12a (Record of Service – Date Entered AD (Active Duty) This Period) he entered active duty on 12 January 2006;

	c.  Item 12b (Record of Service – Separation Date This Period) he was separated on 30 June 2013; and

	d.  Item 12c (Record of Service – Net Active Service This Period) incorrectly shows he completed 4 years, 5 months, and 16 days of active duty during the period covered by this DD Form 214.

14.  On 1 July 2013, he was honorably released from the PRARNG and transferred to the USAR Control Group (Retired Reserve).  

15.  On 13 January 2014, an advisory opinion was obtained from the Chief, Personnel Policy Division at NGB.  This official provided a recommendation of approval of the applicant's request based on the following:

	a.  the applicant completed 7 years, 5 months, 18 days service from 12 January 2006 through 30 June 2013, and this service is corroborated by the 7 years and 5 months service reflected in item 11 of his DD Form 214;

   b.  Title 10 U.S. Code, Section 1174, paragraph a, and the Department of Defense Financial Management Regulation (DODFMR) both states that an officer who completes at least six but less than 20 years continuous active duty service is entitled to separation pay;

	c.  active duty orders and officer evaluation reports support the claim of continuous service from 26 January 2006 through 30 June 2013, and Orders   56-8, issued by NGB on 25 February 2013, state he is entitled to full separation pay; and

	d.  in accordance with the applicable laws and regulations, the applicant should be paid separation pay to be calculated by the Defense Finance and Accounting Service.

16.  On an unknown date, the applicant responded to the advisory opinion indicating his concurrence with its contents.  At that time, he requested to receive separation pay based on his total 8 years, 11 months, and 24 days service.

17.  Title 10, U.S. Code, section 1174(c)(3), states a member of an Armed Force other than a Regular member who is discharged or released from active duty and who has completed at least 6 (emphasis added) but fewer than 20 years of active service immediately before that discharge or release is entitled to separation pay if:  (a) the member's discharge or release from active duty is involuntary or (b) the member was not accepted for an additional tour of active duty for which he volunteered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to separation pay based on his years of active service; however, there is insufficient evidence to support this claim.

2.  The evidence of record shows he served on active duty from 11 July 2007 through 30 June 2013, thereby completing only 5 years, 11 months, and 19 days of creditable active duty service.  This calculation differs from the active service credited on his DD Form 214; however, a review of his DD Form 214 reveals the following errors:

	a.  Item 12a shows he entered active duty on 12 January 2006; however, a previous DD Form 214, his PRARNG order history, and his NGB Form 23B show he was REFRAD on 11 January 2007, he served as an ARNG unit member until 10 July 2007, and he entered active duty on 11 July 2007.  Without evidence that shows these substantiating documents are in error, it must be concluded that item 12a incorrectly shows he entered active duty on 12 January 2006.

	b.  Item 12c shows he completed 4 years, 5 months, and 16 days of net active service during the period covered by this DD Form 214; however, the period of service between 12 January 2006 (established as an incorrect start date) and 30 June 2013 equates to 7 years, 5 months, and 19 days.  Furthermore, the correct period, calculated between 11 July 2007 and 30 June 2013, should equate to 5 years, 11 months, and 19 days.  Accordingly, it must be concluded the period represented in item 12c is incorrect as shown.

3.  Notwithstanding the recommendation of approval shown in the NGB advisory opinion in this case, the applicable law requires a Soldier to serve 6 years of consecutive active duty to be eligible for separation pay.  He did not complete a total of 6 years continuous active duty service immediately prior to his discharge on 30 June 2013, as required by law.  Therefore, he is not entitled to separation pay.

4.  In view of the foregoing, the applicant's 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 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)                                         AR20130018986





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ABCMR Record of Proceedings (cont)                                         AR20130018986



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