BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140016321 


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 payment of separation pay (half) in the amount of $48,075.12 if he was entitled to it or deletion of this amount from his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states his DD Form 214 shows he was issued separation pay (half) in the amount of $48,075.12.  He never received this amount.  If he was entitled to receive separation pay in the amount of $48,075.12 he would like to receive what he was entitled to.  If he was not entitled to this amount, he would like it deleted from his DD Form 214 in order for the Department of Veterans Affairs (VA) to stop withholding his benefits.

3.  The applicant provides copies of his DD Form 214 and a letter from the VA.

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 provide 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's military records show he enlisted in the Regular Army (RA) on 5 July 1990.  He was awarded military occupational specialty 61S (heavy wheeled vehicle mechanic).  He reenlisted in the RA on 6 December 1993.

3.  On 8 July 1996, the applicant’s company commander initiated action to separate the applicant for failure to meet Army body composition/weight control standards, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 18, with an honorable discharge.  The company commander stated the reason for the proposed action was the applicant's enrollment in the Army Weight Control Program twice within a period of 12 months.  He advised the applicant of his rights.

4.  On 9 July 1996, after consulting with counsel, the applicant acknowledged the proposed separation.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 17 July 1996, the separation authority approved his separation and directed his transfer to the Individual Ready Reserve.  

6.  Orders Number 204-0003, issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, TX on 22 July 1996, show he was entitled to one half separation pay in accordance with Title 10, U.S. Code (USC), section 1174, and his total Active Federal Service for separation pay was 6 years and 27 days (emphasis added).

7.  He was honorably released from active duty on 1 August 1996 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with completing 6 years and 27 days of active service.  

8.  Item 18 (Remarks) of his DD Form 214 contains the entry, "Separation Pay (Half):  $48,075.12."

9.  His record is void of any evidence showing he was entitled to separation pay in the amount of $48,075.12.

10.  He provided a copy of a letter, dated 31 May 2012, wherein the VA advised him that he was paid separation pay in the amount of $48,075.12 and they were withholding the amount of separation pay he received from his VA compensation. After that amount had been paid back, he would start receiving his full VA compensation.  
11.  On 6 October 2014, a staff member of the Defense Finance and Accounting Service (DFAS) verified the applicant received separation pay in the amount of $4,875.12 in 1996.  The DFAS official stated that the computation of the amount listed on the applicant's DD Form 214 was wrong and the DD Form 214 should be corrected to reflect the correct amount of separation pay.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 18 provided the authority for the involuntary separation of Soldiers who failed to meet the body fat standards set forth in Army Regulation 600-9 (The Army Body Composition Program).  Paragraph 18-2a(2) of the regulation stated that initiation of separation proceedings was required for Soldiers who did not make minimum satisfactory progress and still exceed the body fat standards for any two consecutive months while they were enrolled in the Army weight control program.  An honorable discharge was mandatory for all members separating under those provisions except those who were still in an entry level status who received uncharacterized discharges. 

13.  Army Regulation 635-5 (Separation Documents), in effect, at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active duty.  The regulation stated item 18 would list for a Soldier receiving separation pay (as indicated by the finance office) the type of pay and amount.

14.  Title 10, USC states in:

   a.  Section 1174(b)(1) - a regular enlisted member of an armed force who is discharged involuntarily or as the result of the denial of the reenlistment of the member and who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay computed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay. 

   b.  Section 1174(d) - the amount of separation pay which may be paid to a member under this section is:

		(1)  10 percent of the product of his/her years of active service, and 

(2)  12 times the monthly basic pay to which he was entitled at the time of his discharge or release from active duty; or one-half of the amount computed under clause (1). 

   c.  Section 1174(f) - in determining a member’s years of active service for the purpose of computing separation pay under this section, each full month of service that is in addition to the number of full years of service creditable to the member is counted as one-twelfth of a year and any remaining fractional part of a month is disregarded.

   d.  Section 1174(h) - 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.

DISCUSSION AND CONCLUSIONS:

1.  With regard to deletion of the amount of separation pay shown on the applicant's DD Form 214, although he does not recall the amount of separation pay he received at the time of his separation, DFAS verified he received half separation pay in the amount of $4,875.12.  Therefore, item 18 of his DD Form 214 should be corrected to show he received separation pay in the amount of $4,875.12 as verified by DFAS.

2.  With regard to his entitlement to separation pay in the amount of $48,075.12, his DD Form 214 accurately reflects his completion of 6 years and 27 days of active duty military service.  Given his active duty service was properly documented on his DD Form 214, there is no evidence to believe his separation pay of $4,875.12 as verified by DFAS was improperly calculated.  Therefore, there is insufficient evidence to support granting him the requested relief of payment of $48,075.12.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  __X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 18 of his DD Form 214 the entry, "Separation Pay (Half):  $48,075.12" and replacing it with the entry, "Separation Pay (Half):  $4,875.12."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to payment of separation pay in the amount of $48,075.12.



      _______ _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)                                         AR20140016321



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ABCMR Record of Proceedings (cont)                                         AR20140016321



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