BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140015284 


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 item 26 (Separation Code) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 2014 for entitlement to separation pay.

2.  The applicant states:

	a.  She completed over 8 years of continuous active duty with the Texas Army National Guard (TXARNG) which qualified her for severance pay.  In June 2014, she was told there was no longer funding available to keep her on active duty.  She was being laid off after being on active duty for almost 9 years.

	b.  She requested severance pay.  During her out-processing the administrative representative prepared all the required documents and submitted her severance pay packet.

	c.  The military pay office returned her request saying that her Individual Ready Reserve contract agreement was not in the packet and they couldn't pay the funds.  She would have to petition the Army Board for Correction of Military Records.

3.  The applicant provides:

* email correspondence
* DA Form 4187 (Personnel Action)
* separation payment worksheet
* DD Forms 214 for the periods ending 14 July 2004, 29 May 2007, 8 April 2008, 30 September 2013, and 30 June 2014
* DD Form 215 (Correction to DD Form 214) for the period ending 30 June 2014
* regulation excerpts and Military Personnel messages

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the TXARNG Active Guard Reserve Program.  She enlisted in the ARNG on 10 November 2003.  She provided DD Forms 214 which show she served on active duty from:

* 17 February 2004 to 14 July 2004
* 1 July 2005 to 29 May 2007
* 30 May 2007 to 8 April 2008
* 9 April 2008 to 30 September 2013
* 1 October 2013 to 30 June 2014

2.  She was promoted to staff sergeant effective 25 February 2013.  On 30 June 2014, she was honorably released from active duty (REFRAD) by reason of completion of required active service.  Her DD Form 214 for the period ending 30 June 2014 shows in:

* item 9 (Command to Which Transferred) – N/A
* item 25 (Separation Authority) – Army Regulation 635-200, Chapter 4
* item 26 (Separation Code) – MBK
* item 28 – Completion of Required Active Service

3.  A DD Form 215, dated 6 August 2014, amended item 18 (Remarks) of her DD Form 214 for the period ending 30 June 2014 to show the entry "Member is authorized full separation payment in the amount of $37,312.80//Nothing Follows."

4.  A DA Form 4187 (Personnel Action), dated 20 August 2014, shows she:

	a.  agreed to serve in the Ready Reserve of a Reserve Component of the Armed Forces for a period of not less than 3 years following her separation from active duty in order to receive separation pay;

	b.  understood that if she were qualified for the Ready Reserve, she would be enlisted or appointed, as appropriate, as a Reserve member of the Military Service concerned upon separation from active duty;

	c.  the 3-year Ready Reserve obligation would begin on the day after the day on which she completed her existing obligation if she had a service obligation that was not completed at the time she was separated from active duty; and

	d.  would not be enlisted or appointed by the Military Service concerned and would be considered to have met this condition of eligibility for separation pay if it were determined that she was not qualified for appointment or enlistment in the Ready Reserve.

5.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1.  The advisory official determined the applicant was not entitled to separation pay.  The opinion stated:

	a.  After careful review, the Army G-1 determined the applicant is not entitled to separation pay in accordance with Title 10, U.S. Code, section 1174, and Department of Defense (DOD) Instruction 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay).  The DD Forms 214 submitted depict a separation program designator (SPD) code that is not associated with an involuntary separation in accordance with Army Regulation 635-5-1 (SPD Codes).

	b.  A thorough review of the available records indicates the applicant was not released from "active duty" to conform to the above statute.  As a Title 32 Full-Time National Guard Duty Soldier, her "active service" is excluded from the definition of "active duty" as defined in Title 10, U.S. Code, section 101, to qualify for separation pay.  Consequently, Soldiers in this category are not entitled to separation pay.

6.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  She responded and stated that according to the DOD Financial Management Regulation, Volume 7A, chapter 3502 (Separation Pay Nondisability), and Military Personnel Message 08-050, the SPD code is correct and would allow her to receive the severance pay as a Title 32 Soldier.

7.  Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that:

	a.  SPD code MBK is the appropriate code to assign to Soldiers being voluntarily REFRAD or transferred under the provisions of Army Regulation 
635-200, chapter 4, by reason of completion of required active service.

	b.  SPD code LBK is the appropriate code to assign to Soldiers being involuntarily REFRAD or transferred under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.

8.  Title 10, U.S. Code, section 1174(c), states "a member of an Armed Force other than a Regular member who is discharged or released from active duty and who has completed 6 or more, but fewer than 20 years of 'active service' immediately before that discharge or release is entitled to separation pay computed under subsection (d)(1) or (d)(2), as determined by the Secretary concerned, if – (A) the member's discharge or release from active duty is involuntary…"

9.  The DOD Financial Management Regulation, volume 7A, section 3502 (Separation Pay (Nondisability)), paragraph 350201 (Entitlement), states that beginning on 20 June 1991, full payment of nondisability separation pay has been authorized to Military Service members of the Regular and Reserve Components who have been involuntarily separated from active duty and have met each of the following four conditions:

	a.  The member has met one of the following criteria for active military service:

		(1)  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 service.  Reserve members not on the Active Duty List when separated must have 6 years of continuous active duty or Full-Time National Guard Duty immediately preceding separation.  A period of active duty is considered continuous if any break in active service does not exceed 30 days.

		(2)  The member (other than a Regular enlisted member) was on active duty or Full-Time National Guard Duty on 5 November 1990 and on that date had 5 or more but less than 6 years of active service.  Reserve members not on active duty when separated must have 5 years of continuous active duty or Full-Time National Guard Duty immediately preceding separation.  A period of active duty is considered continuous if any break in active service does not exceed 30 days.

	b.  The member's separation must be characterized as "honorable" and none of the conditions apply that are listed in paragraph 350202.

	c.  A member who is separated involuntarily through either the denial of reenlistment or the denial of continuation on active duty or Full-Time National Guard Duty must meet one of the following conditions:

		(1)  The member must be fully qualified for retention but denied reenlistment or continuation.  This includes a Military Service member who is eligible for promotion as established by the Secretary of the Military Service concerned, but is denied reenlistment or continuation on active duty under established promotion or high year of tenure policies.

		(2)  The member must be fully qualified for retention but involuntarily separated under a reduction in force by authority designated by the Secretary of the Military Service concerned.

		(3)  The member must be denied reenlistment or continuation on active duty or Full-Time National Guard Duty under subparagraphs 350201.A.3.a through 350201.A.3.c and have accepted an earlier separation from active duty.

	d.  The member must have entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a Reserve Component of the Armed Forces for a minimum period of 3 years following the separation from active duty.

		(1)  A member who enters into this written agreement and who is qualified for service in the Ready Reserve will, upon separation from active duty, be enlisted or appointed, as appropriate, as a Reserve member by the Military Service concerned.  If the person has a service obligation under Title 10, U.S. Code, section 651, or any other law that is not completed at the time of separation from active duty, then the 3-year obligation begins on the day after the day on which the member completes the prior obligation.

		(2)  A member who enters into this written agreement and who is not qualified for enlistment or appointment in the Ready Reserve need not be enlisted or appointed by the Military Service concerned to be considered to have met this condition of eligibility for separation pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was involuntarily separated from Full-Time National Guard Duty upon completion of her required active service.  She completed 9 years, 4 months, and 28 days of continuous active service under Title 32.  Her DD Form 214 for the period ending 30 June 2014 as amended shows she is authorized full separation pay in the amount of $37,312.80.

2.  The advisory official determined she was not entitled to separation pay in accordance with Title 10, U.S. Code, section 1174, based on her SPD code MBK indicating voluntary separation.  The advisory official also indicated Title 32 Full-Time National Guard Duty did not conform to the aforementioned statute to qualify for separation pay in that "active service" is excluded from the definition of "active duty" as defined in Title 10, U.S. Code, section 101.

3.  Notwithstanding the advisory opinion, Title 10, U.S. Code, section 1174(c), clearly makes a distinction between "active duty" and "active service" and provides that a member of an Armed Force other than a Regular member who is discharged or released from active duty and who has completed 6 or more but fewer than 20 years of "active service" immediately before that discharge or release is entitled to separation pay computed under subsection (d)(1) or (d)(2), as determined by the Secretary concerned, if the member's discharge or release from active duty is involuntary.

4.  Further, the DOD Financial Management Regulation, paragraph 350201, states full payment of nondisability separation pay has been authorized to Military Service members of the Reserve Components who have been involuntarily separated from Full-Time National Guard Duty.

5.  Although the applicant's DD Form 214 for the period ending 30 June 2014 erroneously cited SPD code MBK instead of LBK, it appears she is indeed entitled to separation pay.  In addition, her records show she agreed to serve in the Ready Reserve of a Reserve Component of the Armed Forces for a period of not less than 3 years following her separation from active duty in order to receive separation pay.  Therefore, it would be appropriate to correct item 26 of her DD Form 214 for the period ending 30 June 2014 to show SPD code LBK and paying her separation pay in the amount of $37,312.80, less applicable taxes.

6.  As a related issue, item 9 of her DD Form 214 for the period ending 30 June 2014 should be corrected to show she transferred to the 197th Special Troops Support Company (STSC), TXARNG, San Antonio, Texas.

BOARD VOTE:

___x_____  ___x_____  __x__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by:

	a.  deleting the current entry in item 9 of her DD Form 214 for the period ending 30 June 2014 and replacing it with the entry "197th STSC, TXARNG, San Antonio, Texas";

	b.  deleting the current entry in item 26 of her DD Form 214 for the period ending 30 June 2014 and replacing it with the entry "LBK"; and

	c.  paying her separation pay in the amount of $37,312.80, less applicable taxes.



      __________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)                                         AR20140015284



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ABCMR Record of Proceedings (cont)                                         AR20140015284



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