IN THE CASE OF:
BOARD DATE: 1 October 2014
DOCKET NUMBER: AR20140002440
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 separation pay.
2. He states his DD Form 214 (Report of Separation from Active Duty) shows a Separation Program Designator (SPD) Code of "LBK" which corresponds with separation pay in the amount of 10 percent (%).
3. The applicant provides his DD Form 214 and an SPD Code Table.
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 25 September 1972. He was honorably released from active duty on 24 September 1975 and credited with completing 3 years of active duty service.
3. Item 9c (Authority and Reason) of his DD Form 214 shows Section VI, Chapter 2, Army Regulation 635-200 (Personnel Separations Enlisted Personnel) with an SPD Code of "LBK."
4. He provides an SPD Code Table that shows Soldiers separated with SPD Code LBK were eligible for separation pay in the amount of 10% with "Notes 5 and 8." However, he did not provide the notes corresponding to the codes. Additionally, there is no date contained on the table that shows an effective date of the table.
5. Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribes the specific authorities, reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. This regulation provides that SPD code LBK applies to persons separated who completed the required active service.
6. Appendix, Enlisted SPD Codes, was released in January 2000 which updated Army Regulation 635-5-1 to add 10% separation pay eligibility for Soldiers who were separated with an SPD Code of LBK.
7. Department of the Army (DA) message 242130Z July 1991, subject: Transition Assistance, provided information on transition benefits available to Soldiers who were involuntarily separated. For transition assistance purposes, "involuntary separation" meant release for active duty of any Soldier on or after 30 September 1990 and who was denied reenlistment/continuation or was involuntarily separated under other than adverse conditions. In order to be eligible for separation pay, a Soldier must meet a five-part test. The Soldier must:
* have completed at least 6 years but fewer than 20 years of active service
* receive a service characterization of honorable or under honorable conditions
* sign a written agreement to serve 3 years in the Ready Reserve
* have completed an initial term of enlistment
* be involuntarily separated or denied reenlistment
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should have received 10% separation pay for being released from active duty with an SPD Code of LBK. Although the evidence of record shows Soldiers currently separating from the Army with an SPD of LBK are eligible for separation pay in the amount of 10%, there is no indication that this policy was in effect at the time the applicant was released from active duty in 1975. Therefore, in absence of documentation showing the notes corresponding with the table and the effective date of the policy, the presumption of regularity must be applied.
2. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.
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) AR20140002440
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ABCMR Record of Proceedings (cont) AR20140002440
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