IN THE CASE OF:
BOARD DATE: 19 August 2014
DOCKET NUMBER: AR20130019759
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, separation pay and transitional health care benefits.
2. The applicant states that upon his honorable discharge he was told that he did not qualify for severance pay even though he was basically fired because he failed his Army Physical Fitness Test (APFT). He does not understand why a person discharged for being a drug/alcohol rehabilitation failure is entitled to separation pay but he is not. In addition, he and his dependents were told they did not qualify to receive 180 days of continued medical coverage. He gave
12 years of his life to the military and he believes that he is entitled to receive the same benefits that a Soldier discharged for disciplinary reasons receives.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending 28 October 2013.
CONSIDERATION OF EVIDENCE:
1. The complete facts and circumstances of his discharge are not available for review with this case. However, there are sufficient records available to make a fair and impartial decision in this case.
2. The applicant enlisted in the Regular Army on 21 June 2001. A review of the applicant's Official Military Personnel File (OMPF) is void of any documents relating to his inability to participate in physical fitness training or successfully pass the APFT.
3. Orders 294-0113, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX, dated 21 October 2013, show the effective date of his discharge as 28 October 2013 and include the additional instructions which state: "SOLDIER MAY BE ELEGIBLE FOR TRANSITIONAL HEALTH CARE UNDER 10 USC, SECTION 1145 UNTIL 27 APRIL 2014."
4. Accordingly, he was honorably discharged on 28 October 2013 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 13 due to unsatisfactory performance. His DD Form
214 shows he:
* was a sergeant (E-5)
* completed 12 years, 4 months, and 8 days of active service
* was not eligible for separation pay
* signed a DA Form 4991-R (Declination of Continued Service Statement (DCSS))
5. Army Regulation 601-280 (Army Retention Program) prescribes criteria for the Army Retention Program. Chapter 4 provides for reenlistments, extensions, and DCSS. Paragraph 4-11 (Use of the DCSS) states Soldiers, other than those in their initial term, having 4 or more years of service for pay purposes at expiration term of service, must take action to meet Service Remaining Requirements. Soldiers eligible, but refusing to take action to satisfy military SRRs will be denied further service through the DA Form 4991-R.
6. Title 10, U.S. Code (USC) 1174 provides for separation pay to certain Soldiers involuntarily discharged or released from active duty.
7. Title 10 USC 1145 prescribes that a member who is involuntarily separated from active duty (and the dependents of the member) shall be entitled to receive transitional health care for 180 days beginning on the date on which the member is separated from active duty.
8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant's discharge packet is not available for review, the evidence shows he declined to continue his service as noted on his DD Form 214. By law, a Soldier who is involuntarily discharged, as in the case of drug/alcohol rehabilitation failures, are entitled to separation pay and transition health benefits. Soldiers who voluntarily are separated, even under honorable conditions, are normally not entitled to separation pay as is the case when a Soldier elects not to reenlist. The reference to his possible entitlement to transitional health care benefits in all probability is a standard entry on all separation orders and eligibility is determined on a case by case basis.
2. Absent evidence to the contrary, it must be presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. There is no evidence of record and the applicant did not provide any evidence that shows his discharge was in error or unjust.
3. In view of the foregoing, his 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) AR20130019759
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