IN THE CASE OF:	  

		BOARD DATE:	  30 December 2014

		DOCKET NUMBER:  AR20140006229 


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 the issuance of a 15-Year Letter, authorization to receive non-regular retired pay in the pay grade E-6 effective 13 September 2013, and transfer to the United States Army Reserve Control Group (Retired Reserve).

2.  The applicant states that at the time of his separation he was not offered the option of accepting a 15-Year Letter, even though he had over 19 years of qualifying service for retirement.  He was told he would accept a severance package and was not given any other option by the Physical Evaluation Board (PEB) officer or the appointed Judge Advocate General (JAG) officer.  He should have been offered the option of transferring to the Retired Reserve but did not become aware of that option until 2012.  He held the rank of staff sergeant (SSG)/E-6 for 2 and one-half years and was not reduced for cause.

3.  The applicant provides copies of a memorandum from the U.S. Army Total Army Personnel Command (TAPC), separation documents (DD Forms 214 and National Guard Bureau (NGB) Forms 22), discharge orders, and an extract of his enlistment contract, dated 4 February 1985. 

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 was born on 13 September 1953.  He initially enlisted in the Regular Army on 14 October 1971 and served until he was honorably discharged on 30 January 1979.

3.  On 31 January 1979, he enlisted in the Iowa Army National Guard (IAARNG) and was promoted to the rank/pay grade of SSG/E-6 on 7 February 1981.  He continued to serve through a series of enlistments and reenlistments and deployed to Southwest Asia in support of Operation Desert Shield/Storm during the period 19910110 – 19910512.

4.  He was discharged from the IAARNG on 25 September 1989.  On 1 October 1990, he again enlisted in the IAARNG in the rank/pay grade of sergeant/E-5 for a period of 6 years.

5.  On 10 February 1995, he was discharged him under the provisions of Army Regulation 635-40, in the pay grade of E-6, with a 10 percent disability rating and authorization for severance pay effective 28 February 1995.  His ARNG Retirement Points History Statement shows he had 19 years, 3 months, and     24 days of creditable service for retired pay.

6.  On 16 February 1995, officials at the IAARNG dispatched a Miscellaneous Obligation Documents to the U.S. Property and Fiscal Officer at Camp Dodge, Iowa, authorizing severance pay to the applicant in the amount of $46,416.00.

7.  In the processing of this case a staff advisory opinion was obtained from the NGB which recommends partial approval of the applicant’s request.  Officials at the NGB opined that he should be granted a waiver due to the possibility that he was not counseled regarding his option to be transferred to the Retired Reserve in lieu of accepting severance pay.  Further, he should be allowed to repay the severance pay received and become eligible for retirement benefits or choose not to repay the severance pay and remain ineligible for retirement benefits.

8.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he did not receive any severance pay; however, he desires to be retired instead of being discharged and will pay any monies owed from his retired pay but desires proof that he was paid the monies claimed by the government.  

9.  A review of his official records failed to show any documents related to his PEB or evidence to show that he was counseled regarding his options of being transferred to the Retired Reserve or accepting severance pay.  However, his records do contain a letter from the Office of Legislative Liaison, NGB dated      10 July 1996, which responds to an inquiry from the applicant to the President.  The letter indicates he was issued and accepted his severance pay. 

10.  The Department of Defense Financial Management Regulation, Volume 7A, paragraph 350407, provides, in pertinent part, that a member who has been paid severance pay is not entitled to any payment from the Military Service for, or arising out of, service before separation.

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service), provides in paragraph 2-1b(2) that in order to be eligible for retired pay, the Soldier must not have elected to receive disability severance pay in lieu of retired pay at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be retired at age 60 (13 September 2013)  with entitlement to all back pay and allowances because he was not properly advised that he had a choice between retirement at age 60 and severance pay.  

2.  While it cannot be determined based on the records available to the Board if he was properly counseled or if in fact, he received the severance pay he was entitled, given the support of the NGB in this matter it appears he should be granted any benefit of doubt that exists in his case.

3.  Therefore, in accordance with the request of the applicant, his discharge of  28 February 1995 with disability severance pay should be voided and he should be transferred to the Retired Reserve effective 28 February 1995.

4.  His records should then be corrected to show he applied for non-regular retired pay in grade of E-6 effective 13 September 2013, with entitlement to all back retired pay from that date, less any severance pay he received.  The Defense Finance and Accounting Service should confirm whether he did in fact receive his severance pay.

5.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

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 National Guard and Department of the Army records of the individual concerned be corrected by:

* voiding his disability discharge of 28 February 1995
* showing he was instead transferred to the USAR Control Group (Retired Reserve) in the pay grade of E-6 effective 28 February 1995
* showing he applied for non-regular retirement in the pay grade of E-6, to be effective 13 September 2013, with entitlement to all back retired pay from that date, less any severance pay he received



      __________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)                                         AR20140006229





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ABCMR Record of Proceedings (cont)                                         AR20140006229



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