IN THE CASE OF:  	  

		BOARD DATE:  27 January 2015	  

		DOCKET NUMBER:  AR20140007618 


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 removal of the entry "SEPARATION PAY -- $41,170.14" from his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he never received the Separation Pay.

3.  The applicant provides:

* DD Form 214
* Letter from the Disabled American Veterans, National Service Office located in Boise, ID
* Letter from the Department of Veterans Affairs (VA)
* 2 statements showing his VA compensation transactions

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests assistance with correcting the applicant's DD Form 214 by removing the entry pertaining to Separation Pay.

2.  Counsel states the VA is withholding his compensation pay to recoup the Separation Pay the applicant did not receive.

3.  Counsel provides no additional evidence.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 October 1996 and served in a variety of assignments through a series of reenlistments.  He attained the rank/pay grade of sergeant first class/E-7.

2.  On 7 November 2012, the applicant was involved in an alcohol-related incident that required involvement of the Fort Irwin Military Police (MP).

3.  On 10 November 2012, the applicant was counseled by his unit commander because this was the second alcohol-related incident that had interfered with his duty.  He also advised the applicant that his drinking while enrolled in the Alcohol and Substance Abuse Program (ASAP) he was now categorized as an ASAP failure for failing to comply with regulations governing the ASAP.  The commander advised the applicant that he was being considered for separation from the Army under the provisions of chapter 9 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for alcohol or drug abuse rehabilitation failure.  The commander ordered the applicant not to consume any alcohol and advised him that failure to comply with this order would result in nonjudicial punishment or court-martial.  He also advised the applicant that in accordance with local policy, he would receive a General Officer Memorandum of Reprimand (GOMOR) from the Commanding General (CG).  The commander stated he wanted to support the applicant in getting his life in order so that he could continue being a proud member of the Army.

4.  On 6 December 2012, the CG, Headquarters, National Training Center and Fort Irwin, CA, issued a GOMOR to the applicant for being drunk and disorderly.  On 7 November 2012, the Fort Irwin MPs conducted a safety check of the applicant's quarters after receiving a report that he was experiencing suicidal ideations.  Upon entering his quarters, MPs found him passed out and subsequently transported him to the Emergency Room for medical evaluation.  While there, he became belligerent and noncompliant with medical personnel and assaulted an MP.  The applicant was so drunk, aggressive, and combative that he had to be tased in order to be subdued.  A test administered at the hospital indicated his blood/alcohol content was 0.285.

5.  On 5 February 2013, the applicant's unit commander notified the applicant of the initiation of separation action against him under the provisions of chapter 9 of Army Regulation 635-200 by reason of failure of alcohol of drug abuse rehabilitation failure.  The applicant was advised that this determination had been made in consultation with the rehabilitative team at the local ASAP center.  The commander informed the applicant that if the separation action was approved he would be issued a general discharge under honorable conditions.  The commander informed the applicant that he may submit comments in his own behalf to be considered by the discharge authority along with the commander's recommendations for elimination.  The applicant was also advised that he may request military legal counsel to assist him in preparation of his comments.  In closing, the commander informed the applicant that he must undergo a complete medical examination prior to separation.

6.  On 5 February 2013, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his aforementioned rights with the understanding that he would receive an honorable characterization of service.

7.  On 27 February 2013, the separation authority approved the applicant's discharge and directed that he be issued an Honorable Discharge Certificate.

8.  The applicant's DD Form 214 shows he was discharged under the provisions of chapter 9 of Army Regulation 635-200 by reason of alcohol rehabilitation failure.  This form also shows that he received an honorable characterization of service.  He was separated on 16 April 2013 and was credited with completing 16 years, 5 months, and 16 days of active duty service.  Item 18 (Remarks) contains the entry "separation pay -- $41,170.14."

9.  The Defense Finance and Accounting Service (DFAS) reviewed the applicant's Master Military Pay Account (MMPA) and confirmed that the applicant received Separation Pay in the amount of $41,170.14, less Federal Income Tax Withholdings, which resulted in the receipt of a net payment of $30,877.60.

10.  The applicant provides documents from the VA which show that although he has been granted service connected disability compensation, a portion of his payments is being withheld due to recoupment of his Separation Pay.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.   Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to ASAP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  At the time of the applicant’s separation an honorable or general discharge was authorized.

12.  Title 10, U.S. Code, Section 1174(h)(2) states that a member who receives separation pay and later becomes eligible for disability compensation from the VA shall have an amount deducted from their disability compensation until the separation pay is recouped.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the entry "SEPARATION PAY -- $41,170.14" should be removed from his DD Form 214 was carefully considered.

2.  By violating the Army's policy not to abuse alcohol, the applicant compromised the special trust and confidence placed in him as a Soldier.  The applicant had the duty to support and abide by the Army's alcohol abuse policies.
By abusing alcohol, the applicant knowingly risked his military career.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

4.  As a result of the applicant's involuntary honorable discharge, he was eligible for receipt of Separation Pay.  Both his DD Form 214 and DFAS MMPA show that he received Separation Pay in the gross amount of $41,170.14.  Therefore, in the absence of evidence to the contrary, there is no basis for granting the applicant's requested relief.

5.  The statutory and provisions for Separation Pay clearly state that a member who has received Separation Pay and later becomes eligible for disability compensation from the VA shall have an amount deducted from their disability compensation until the Separation Pay is recouped.

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for 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)                                         AR20140007618





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007618



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1