IN THE CASE OF:	   

		BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130020581 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by deleting from item 18 (Remarks) the entry "Separation Pay - - $21913.74."

2.  The applicant states that he never signed an agreement to serve in the 
U.S. Army Reserve (USAR), Ready Reserve; therefore, he was not eligible for separation pay.  His DD Form 214 shows an entitlement to separation pay; however, he didn't receive the money.

   a.  He was awarded disability compensation by the Department of Veterans Affairs (VA).  However, the VA has recouped the amount of the separation pay (plus additional charges) based on the erroneous entry on his DD Form 214.

   b.  He doesn't want to, and doesn't intend to, enlist in the USAR; therefore, he understands that he will not be eligible for the separation pay.  Additionally, an audit of his finance records will show he was never awarded separation pay.

   c.  He has attempted to resolve this matter with both the VA and Defense Finance and Accounting Service (DFAS), but he has been unsuccessful.  He adds that he is currently serving under a Department of Defense (DoD) contract with the U.S. Marine Corps in Bahrain.


3.  The applicant provides the following documents:

* reassignment, deployment, and separation orders
* oath of extension
* leave and travel documents
* three Leave and Earnings Statements (LESs)
* DD Form 214
* Form W-2 (Wage and Tax Statement - 2008)
* Form 1040A (U.S. Individual Income Tax Return - 2008)
* Andrews Federal Credit Union account statements
* VA award letter
* Notice of Disagreement to Dispute Recoupment of Separation Pay
* email message thread (applicant and DFAS officials)

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 had prior honorable enlisted service in the Regular Army (RA) from 6 March 1997 through 5 March 2001 and in the USAR from 6 March 2001 through 6 March 2002.

3.  He again enlisted in the RA on 7 March 2002 and was assigned overseas to Germany.

   a.  He reenlisted in the RA on 8 April 2004.  He deployed to Iraq during the periods 28 April 2003 to 26 July 2004 and 28 May 2005 to 25 December 2005. He also deployed to Afghanistan during the period 13 May 2007 to 14 July 2008.

   b.  On 4 September 2008, he extended the period of his service obligation for 1 month under contingency deployment conditions.

4.  Installation Management Command - Europe, Schweinfurt Transition Center (Germany), Orders 304-002, dated 30 October 2008, reassigned the applicant to the Schweinfurt Transition Center for separation processing and discharge on 
7 December 2008.  The additional instructions show:

* "You are ENTITLED TO FULL SEPARATION PAY" in accordance with Title 10, United States Code, section 1174 (10 USC 1174)
* "If you are entitled to separation pay, you must return a DA Form 7154-R (Agreement to Join the Ready Reserve) to the Transition Center prior to your final out-processing appointment."

5.  The applicant's DD Form 214 shows he was honorably discharged on 
7 December 2008 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4 (Separation for Expiration of Service Agreement), based on completion of required active service.  He had completed 6 years, 9 months, and 1 day of net active service this period; 4 years of total prior active service; and 1 year and 1 day of total prior inactive service.  It also shows in:

* item 9 (Command To Which Transferred):  "N/A"
* item 18 (Remarks), in part:  "SEPARATION PAY - - $21913.74"

6.  In support of his application the applicant provides, in part, the following documents:

   a.  three LESs pertaining to the applicant for the October, November, and December 2008 pay periods.  They do not show an entitlement to/payment of separation pay.  The December 2008 LES shows his Federal Taxable Wages (Year-to-Date) as $13,527.00 and Federal Taxes (Year-to-Date) as $986.05.
Page 2 shows "Separation Pay Owed Member:  $0.02."

   b.  VA Regional Office, Pittsburg, PA, letter, dated 15 March 2013, that shows the VA granted the applicant service connection for post-traumatic stress disorder with memory loss (rated at 70 percent) effective 20 October 2011.  It also shows:

    	(1)  "We Have Withheld Benefits.  The military paid you separation pay in the amount of $21,913.74, as shown [on] your DD Form 214 (VA's emphasis).  For separation pay received after September 30, 1996, VA will withhold the amount the military paid you minus the amount of Federal income tax withheld.  After this amount is paid back, you'll start receiving your full VA compensation."

    	(2)  "What We Decided About Your Separation Pay.  After our review, we have determined that the actual amount to be recouped should be $34,899.66 less Federal income withheld, $26,174.75.  We have taken action to make the necessary corrections to your award."
   
    	(3)  The VA began withholding his VA benefit effective 1 November 2011 due to recoupment of separation pay.

   c.  A Notice of Disagreement to Dispute Recoupment of Separation Pay submitted by the applicant to the VA disputing the withholding by explaining the his separation processing, erroneous entries on his separation documents, his post-service employment in Qatar, and efforts he took to correct the matter.

7.  A review of the applicant's military personnel records failed to reveal evidence of a DA Form 7154-R or any other record showing that he enlisted in the USAR on or after 8 December 2008.

8.  On 16 January 2014, DFAS confirmed that the applicant did not receive separation pay.  (He did receive a lump sum payment for unused leave.)

9.  DoD Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 35 (Separation Payments), paragraph 350201 (Full Separation Pay), provides that, beginning on 20 June 1991, full payment of non-disability separation pay has been authorized to Military Service members of the Regular and Reserve Components who have been involuntarily separated from active duty and have met the specified conditions:

* The member's separation must be characterized as "honorable"
* The member is on active duty and has completed at least 6 years, but less than 20 years, of active service 
* The member is separated involuntarily through either the denial of reenlistment or the denial of continuation on active duty
* The member must have entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a Reserve Component of the Armed Forces for a minimum period of 3 years following the separation from active duty

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army and contains item-by-item instructions for completing the DD Form 214.  It shows for item 18, for a Soldier receiving separation/readjustment or non-disability severance pay (as indicated by the finance office), enter type of pay and amount.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected by deleting from item 18 of his DD Form 214 the entry "Separation Pay - - $21913.74."

2.  The evidence of record shows the applicant was honorably discharged from the RA based on completion of required active service.  There is no evidence of record that he was involuntarily separated from active duty.

3.  The applicant's separation orders authorized entitlement to Full Separation Pay contingent upon him completing an agreement to join the USAR (Ready Reserve).  His DD Form 214 authorized Separation Pay in the amount of $21,913.74.  

4.  Item 9 of the applicant's DD Form 214 does not show that he was transferred to the USAR.  Moreover, there is no evidence of record that he completed an agreement to enlist in the USAR.

5.  There is no evidence of record that shows the applicant received payment of separation pay at the time of his discharge.  In addition, the evidence of record shows that DFAS confirmed the applicant did not receive separation pay.

6.  Thus, based on the evidence of record it is concluded that the applicant's separation orders and his DD Form 214 contain erroneous entries regarding separation pay.  Therefore, it would be appropriate to correct his records by deleting those entries from his separation documents.

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:

   a.  amending Installation Management Command - Europe, Schweinfurt Transition Center (Germany), Orders 304-002, dated 30 October 2008, by deleting the following additional instructions:

* "(a)  You are ENTITLED TO FULL SEPARATION PAY IAW 10 USC Section 11274."
* "(b)  If you are entitled to separation pay, you must return a DA Form 7154-R (Agreement to Join the Ready Reserve) to the Transition Center prior to your final out-processing appointment."

   b.  deleting from item 18 of his DD Form 214 the entry, "SEPARATION PAY - - $21913.74."




      ___________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)                                         AR20130020581



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ABCMR Record of Proceedings (cont)                                         AR20130020581



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