IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20140020097 


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, an exception to policy to receive separation pay in the amount of $8,870.04.

2.  The applicant states:

* he was assigned separation code "JFK" and reentry eligibility (RE) code 3 and he was authorized half separation pay in the amount of $8,870.04
* he was never paid the $8,870.04 in separation pay
* he was told he had to enlist in the Army National Guard (ARNG) in order to receive the separation pay
* his RE code does not permit him to enlist in the ARNG
* his RE code did not stipulate that he needed to enlist in the ARNG in order to receive the separation pay listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* this is an injustice because he was continually given wrong information
* his DD Form 214 states he was to receive half of his separation pay with no stipulations

3.  The applicant provides his DD Form 214.

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 enlisted in the Regular Army on 25 August 2000 for a period of 4 years.

3.  On 30 June 2003, he extended his enlistment for a period of 4 years and 2 months.

4.  Headquarters, U.S. Army Medical Department Center and School, Orders 110-0100, dated 20 April 2007, show:

* he was entitled to half separation pay in accordance with Title 10, U.S. Code, section 1174, with 7 years, 2 months, and 6 days of active Federal service
* he was directed to contact an in-service recruiter

5.  On 30 October 2007, he was honorably discharged for completion of required active service.  He was issued a DD Form 214 that shows:

* `Item 26 (Separation Code) JBK
* Item 27 (Reentry Code) 3
* Item 30 (Remarks) in part:

* separation pay -- $8,870.04
* member is entitled to half involuntary separation pay

6.  His Master Military Pay Account (MMPA) shows:

* he is entitled to full separation pay
* he was never paid full or half separation pay

7.  His records are void of and he failed to provide any evidence showing he contacted an in-service recruiter, he executed a 3-year written agreement in the Ready Reserve, or he was unqualified for appointment or enlistment in the Ready Reserve.

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

* RE code 1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* RE code 3 applies to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification is waivable

9.  Title 10, U.S. Code, section 1174, states a Regular enlisted member of an Armed Force who is discharged involuntarily or as a result of denial of reenlistment and who has completed 6 or more but less than 20 years of active service immediately before that discharge is entitled to separation pay under subsection (d) unless the Secretary concerned determines the conditions under which the member is discharged do not warrant payment of such pay.  Subsection (e)(1)(A) states as a condition of receiving separation pay under this section, a person otherwise eligible for that pay shall be required to enter into a written agreement with the Secretary concerned to serve in the Ready Reserve of a Reserve Component (RC) for a period of not less than 3 years following the person's discharge or release from active duty.

10.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims which are often difficult to prove or disprove.

11.  Department of Defense Instruction 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) states payment of non-disability separation pay is authorized to members of the Regular and Reserve Components involuntarily separated from active duty:

	a.  if they are on active duty or full-time National Guard duty and have completed at least 6 years but fewer than 20 years of active service;

	b.  if their separation is characterized as honorable; and

	c.  if they 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 period of not less than 3 years following separation from active duty.  A member who enters into this written agreement and who is not qualified for appointment or enlistment 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.

12.  Department of Defense Instruction 1332.29 further states:

	a.  full payment of non-disability separation is authorized if they were fully qualified for retention but were denied reenlistment or continuation by the Military Service concerned.  This includes a service member who is eligible for promotion as established by the Secretary of the Military Department concerned but is denied reenlistment or continuation on active duty by the Military Service concerned under established promotion or high year of tenure policies; and

	b.  half payment of non-disability separation pay is authorized if they were denied reenlistment or continuation by the Military Service concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an exception to policy to receive separation pay in the amount of $8,870.04 was carefully considered.

2.  Although the applicant was authorized $8,870.04 in separation pay, his discharge orders directed him to contact an in-service recruiter.  Had he complied with these orders, he would have known of the requirement for execution of a 3-year written agreement in the Ready Reserve of a Reserve Component of the Armed Forces and that his RE code was waivable. 

3.  His records are void of and he failed to provide any evidence showing he executed a 3-year written agreement for enlistment in the Ready Reserve of a Reserve Component of the Armed Forces or that he was unqualified for appointment or enlistment in the Ready Reserve.  Though he argues his RE code prevented him from enlisting in the ARNG, the evidence of record shows otherwise. 

4.  In view of the evidence of record, there is no basis 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 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)                                         AR20140020097



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ABCMR Record of Proceedings (cont)                                         AR20140020097



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