IN THE CASE OF:
BOARD DATE: 18 November 2014
DOCKET NUMBER: AR20140001479
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, remission/cancellation of her separation pay debt.
2. The applicant states that the Defense Finance and Accounting Service (DFAS) has taken one-half of the separation pay she received because they say she is only entitled to one-half separation pay instead of full separation pay which her orders indicate.
3. The applicant provides copies of her separation orders, DD Form 214 (Certificate of Release or Discharge from Active Duty), Department of Veterans Affairs Rating Decision, and letters from DFAS.
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 enlisted in the Regular Army on 23 March 1989 and remained on active duty through a series of continuous reenlistments. She was promoted to the pay grade of E-6 on 1 February 1998.
3. The facts and circumstance surrounding her discharge are not present in the available records; however, on 26 March 2004, discharge orders were published that directed her discharge on 27 May 2004. The orders indicated that she was entitled to full separation pay.
4. On 27 May 2004, she was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-8, due to parenthood. She had served
15 years, 2 months, and 5 days of active service and was issued a separation code of JDG. The DD Form 214 issued at the time of her discharge indicates in the Remarks Section (item 18) that she was entitled to full involuntary separation pay and indicates she was paid $51,911.00 in separation pay benefits.
5. The letters provided by the applicant with her application from DFAS indicate that she was overpaid separation pay in the amount of $19,450.40. The letter advises her that if she disagrees with the debt she should apply to this Board.
6. Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by Department of Defense Instruction 1332.29 dated 20 June 1991 and other Department of the Army guidance resulting from Public Law 101-510. The circular also illustrates the various types of separation that are either eligible or ineligible for separation pay. It states, in pertinent part, that separation pay is authorized for Soldiers serving on active duty who were involuntarily separated prior to completion of obligated service or who were decline continuation of further service. It provides, in pertinent part, that personnel who are involuntarily separated due to parenthood with a separation code of JDG are entitled to one-half involuntary separation pay.
7. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) serves as the authority for the remission or cancellation of indebtedness. It provides that the objective of remission or cancellation is to remit or cancel debts that are considered unjust and impose a financial hardship on the Soldier.
DISCUSSION AND CONCLUSIONS:
1. The evidence in this case clearly shows that the applicant was incorrectly authorized full separation pay at the time of her involuntary discharge on 27 May 2004.
2. The applicable regulatory guidance clearly shows that separation for parenthood with a separation code of "JDG" is only authorized one-half separation pay and the applicant was incorrectly paid full separation pay.
3. Therefore, the assessment by officials at DFAS appear to be correct and the applicant was over-paid by one-half of the pay she was authorized. Accordingly, the recoupment of that debt by the DFAS appears to be correct.
4. While the applicant may be disputing that she should repay the debt because it was an error on the part of the Army (government), the government has the right to be paid when an over-payment is made as the individual Soldier has when an under-payment is made, especially when she was never really entitled to receive full separation pay.
5. Accordingly, there appears to be no basis to remit or cancel her debt to the government for an over-payment of separation benefits.
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) AR20140001479
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ABCMR Record of Proceedings (cont) AR20140001479
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