BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140001588 


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, correction of her DD Form 214 (Certificate of Release or Discharge) to show her actual amount of separation pay instead of $15,588.84.

2.  The applicant states:

* the Department of Veterans Affairs (VA) withheld $15,588.84 from her disability pay because of the amount of separation pay on file at the Defense Finance and Accounting Service (DFAS)
* the amount of separation pay on record is incorrect
* she believes the amount of money paid to her for unused accrued leave was arbitrarily combined with her separation pay and is in error
* she does not recall receiving $15,588.84 and this amount plus money for her unused leave should not have been recouped/withheld by the VA

3.  The applicant provides an extract of her VA compensation letter.

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 3 March 1988.

3.  Headquarters, U.S. Army Maneuver Support Center and Fort Leonard Wood, Fort Leonard Wood, MO, Orders 185-0360, dated 3 July 2000, show she was entitled to one-half separation pay in accordance with Title 10, U.S. Code, section 1174.

4.  On 1 August 2000, she was honorably discharged.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 16 (Days Accrued Leave Paid) – 60
* item 18 (Remarks) – Separation Pay – $15,588.84

5.  The applicant provided an extract of her VA compensation letter that shows the military paid her $15,588.84 in separation pay.  This document also shows that for separation pay received after 30 September 1996, the VA would withhold the amount the paid by the military minus the amount of Federal income tax withheld.

6.  The applicant's Master Military Pay Account (MMPA) shows she received:

* $4,237.20 gross for lump sum leave pay
* $15,677.64 in readjustment pay

7.  Title 10, U.S. Code, section 1174(h), provides that a member who has received separation pay under this section, or separation pay, severance pay, or readjustment pay under any other provision of law based on service in the Armed Forces, and who later qualifies for retired or retainer pay under this title or Title 14, shall have deducted from each payment of such retired or retainer pay so much of such pay as is based on the service for which he or she received separation under this section or separation pay, severance pay, or readjustment pay under any other provision of law until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay is received.  A member who has received separation pay under this section or severance pay or readjustment pay under any other provisions of law based on service in the Armed Forces shall not be deprived, by reason of his or her receipt of such pay, of any disability compensation to which he or she is entitled under the laws of the VA, but there shall be deducted from that disability compensation an amount equal to the total amount of separation, severance, or readjustment pay received.

8.  Department of Defense Financial Management Regulation, volume 7A, states separation pay is authorized to service members of the Regular Army and Reserve Components who have been involuntarily separated from active duty and have met each of the following conditions:

	a. the member is on active duty or full-time National Guard duty and has completed at least 6 years but less than 20 years of active duty (a period of active duty is continuous if it is not interrupted by a break in service of more than 30 days); and

	b.  the individual's service must be characterized as "honorable" or "general."

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for individuals upon retirement, discharge, or release from active military service. It established standardized policy for preparing the DD Form 214.  It stated for item 18, enter the amount of disability severance pay/readjustment pay, if any, and specify the type.  For example:  disability severance pay $____/readjustment pay $____.

DISCUSSION AND CONCLUSIONS:

1. The purpose of Title 10, U.S. Code, section 1174(h), is to eliminate receipt of double benefits for the same period of service.

2.  Her MMPA shows she was paid for lump sum leave in the amount of $4,237.20 and readjustment pay in the amount of $15,677.64 (greater than the amount of separation pay shown on her DD Form 214).  She has not provided any evidence to show she did not receive the correct amount of severance/
readjustment pay or payment for her leave.  Although she does not recall receiving the full amount of her separation pay and lump-sum leave, it appears the applicant failed to consider any Federal income tax withholdings.

3.  While the applicant's concerns are understood, recoupment of separation/
severance pay when an individual later qualifies for retired pay or disability compensation is a requirement of law.  To grant her request would afford her a benefit that is not afforded to others in similar circumstances.  The applicant failed to show through the evidence submitted or the evidence of record that she should receive special consideration in this matter.  Accordingly, there appears to be no basis for granting her request.

4.  In view of the circumstances in this case and by law, the applicant neither appears to be entitled to relief from recoupment of her non-disability severance pay by the VA.  The applicant is advised to contact the VA if she believes the amount withheld by that agency is in error.

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)                                         AR20140001588



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ABCMR Record of Proceedings (cont)                                         AR20140001588



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