IN THE CASE OF:	  

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20140019554 


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 she be paid separation pay.

2.  The applicant states, in effect:

* she was mobilized on 20 April 2004 and continued on active duty until her first break on 17 April 2013
* she reviewed a Military Personnel (MILPER) message and an article which speaks on the qualifications for separation pay; based on these two resources she believed she was eligible [not included with application]
* at the time she submitted her first request there was no official policy or regulation that covered her specific situation
* she hand-carried her request to the Army G-1 on 7 April 2014 and, on 17 April 2014, was telephonically told she did not qualify because of her eligibility for retirement
* she was further told an official policy was being put into place
* she was instructed to file an application with the Army Board for Correction of Military Records (ABCMR)
* she submitted her application as instructed, only to be told by the ABCMR she had not exhausted all administrative remedies; she was told to submit a request to the Army G-1
* she once again submitted her packet to the same office to which she had hand-carried her initial request
* the Army G-1 denied her request, stating in part that she did not volunteer for an additional tour of active duty
* in light of the fact the Army is drawing down, the likelihood a request of extension would be approved was remote for a Reserve Soldier such as the applicant
* additionally, as of 2 June 2014, her last period of continuous active duty was for 1,460 days, which already exceeded 1,095 days typically allowed for a Reserve Component Soldier; no agency would have approved her for more time
* the response from the Army G-1 based their denial on a policy that was not implemented until after her initial request was submitted 
* she feels the use of this policy to decide her case is unjust; she contends she should be granted separation pay as she believes she otherwise meets all criteria

3.  The applicant provides:

* letter, dated 19 August 2014, sent to the applicant from Department of the Army (DA), Office of the Deputy Chief of Staff (DCS) for Personnel, G-1
* Congressional inquiry from the applicant's Senator, with associated documents
* letter, dated 5 June 2014, sent to the applicant from DA, Army Review Boards Agency with enclosure

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 September 1987.  On 30 June 1988, she was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  On 22 June 1992, she was voluntarily reassigned to a USAR unit.  She was ordered to active duty on 20 April 2004 and served continuously until 14 August 2011, when she was honorably released from active duty by reason of completion of required active service

2.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 7 years, 3 months, and 25 days of net active service this period, with 9 months and 7 days of prior active service and 15 years, 9 months, and 19 days of prior inactive service.  The narrative reason for separation is the completion of required active service.

3.  She immediately reentered active duty on 15 August 2011, remaining in an active status until 18 April 2013.  Her DD Form 214 shows 1 year, 8 months, and 4 days of net active service this period.  The narrative reason for separation again shows for the completion of required active service.
5.  She had a break in active service of 47 days, then once again entered active duty on 3 June 2013.  She was honorably released on 2 June 2014.  Her DD Form 214 showed she completed exactly 1 year of net active creditable service this period.  She was shown as being released to the USAR Control Group (Reinforcement).  The narrative reason for separation is completion of required active service.

6.  She received her letter of notification of eligibility for retired pay at age 60 (20 Year Letter) on 1 August 2013.  This letter states she is eligible for retired pay at age 60 upon proper application in accordance with Title 10, U.S. Code, chapter 1223.  In addition, her current expiration term of service is shown in the U.S. Army Human Resources Command Soldier Management System as 2 February 2017.

7.  The applicant provides a letter, dated 19 August 2014, sent to the applicant from the DCS for Personnel, G-1.  It essentially states:

* her request for involuntary separation pay could not be favorably considered
* Title 10 (Armed Forces), U.S. Code (USC), section 1174 (Separation Pay upon Involuntary Discharge or Release from Active Duty) provides statutory authority for separation pay
* section 1174(c)(1)(b) allows for separation pay in cases involving Reserve Component Soldiers who are discharged after having completed 6 years or more of active service immediately before that discharge, provided they have not been accepted for an additional tour of active duty for which he or she has volunteered
* Army Directive 2014-12 (Eligibility of Reserve Component Soldiers for Separation Pay) provides for an appeal policy when a request for separation pay has been denied
* because the office preparing this letter coordinated its response with the appellate authority described in the Army Directive, the applicant could be considered to have exhausted all administrative remedies, enabling her to then submit an application to the ABCMR

8.  Title 10, USC, section 1174, subsection (c) (Other Members), as enacted with an amendment in Public Law 101-501 (1990), outlines criteria for the receipt of involuntary separation pay for Reserve Component service members.

	a.  Reserve Component service members who are discharged or released from active duty and have completed 6 or more, but fewer than 20, years immediately before (emphasis added) that discharge or release, are entitled to separation pay if the release was involuntary or the member was not accepted for an additional tour of active duty for which he or she volunteered.

	b.  A member, described above, who was not on the active-duty list when discharged or released may be entitled to separation pay if he or she completed at least 6 continuous years of active duty immediately before such discharge.  For the purposes of this paragraph, a period of active duty is continuous if it is not interrupted by a break in service of more than 30 days.

9.  Title 10, USC, section 115 (Personnel strengths: Requirement for annual authorization) states Congress will authorize personnel strength levels for each fiscal year for active duty personnel, to include those paid for by reserve personnel appropriated funds.  A member of a reserve component who exceeds 1095 days of active duty shall be counted against Active Army end strength.  

10.  Department of the Army Personnel Policy Guidance for Overseas Contingency Operations, dated 1 July 2009, states, as a matter of policy, Reserve Component Soldiers are not permitted to exceed 1,095 days on active duty unless required, as an exception to policy, by the needs of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to be paid separation pay.  She contends she met the criteria for separation pay at the time of her release from active duty.  She additionally asserts the disapproval issued by the DCS for Personnel, G-1 was improper in that it relied on an Army Directive that was not in effect until after her initial request.

2.  The cited Army Directive, while dated after her initial request, is based upon law, the provisions for which were enacted well before the applicant's request.  The law entitles Reserve Component Soldiers to be paid separation pay under essentially two scenarios and neither apply to the applicant:

	a.  She was not involuntarily separated on 2 June 2014, her DD Form 214 shows her reason for separation as completion of required active service.  Additionally, she provides no evidence she was not accepted after voluntarily requesting an additional active duty tour.

	b.  She was not involuntarily released from active duty after having served 6 years of continuous active duty, with continuous being defined as no interruptions for more than 30 days.  She served continuously from 20 April 2004 to 18 April 2013, then had a 47 day break in service before resuming active service for the period 3 June 2013 to 2 June 2014.
3.  By law, there is an insufficient basis upon which to grant the 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)                                         AR20140019554





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ABCMR Record of Proceedings (cont)                                         AR20140019554



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