IN THE CASE OF:	

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20140021118 


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 separation pay.

2.  The applicant states:

   a.  The Army has not fulfilled their obligation and processed his separation pay as identified in his separation orders and on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  They have provided no documentation as to why they stopped his separation pay or explained their actions.  He has been asking for clarification with regard to retirement and separation pay for over a year.

   b.  The Army does not have standard processes identified for Active Guard/Reserve (AGR) Soldiers and has failed to provide administrative oversight to clarify policies written for AGR Soldiers.  Army Human Resources Command (HRC) personnel act on their own prerogative and do not follow law, regulations and decency to Soldiers.  

3.  The applicant provides:

* DD Form 214
* Orders C-12-390023A01
* DD Form 215 (Correction to DD Form 214)
* 2 letters
* 2-page email

* 3 pages of Volume 7A, Chapter 35, Department of Defense 7000.14-R
(Financial Management Regulation)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 29 August 1963.  His records show that, having prior enlisted service in the U.S. Army Reserve (USAR), he was appointed as a second lieutenant in the USAR effective 14 December 1985.   

2.  His AHRC Form 249-E (Chronological Statement of Retirement Points) shows he entered full-time AGR status on 13 January 2000 and remained on active duty until his separation in 2014.  

3.  On 12 February 2003, he received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).

4.  Effective 30 December 2005, he was promoted to lieutenant colonel (LTC), pay grade O-5.  

5.  His record contains:

   a.  Career Manager Notes, beginning 18 September 2013, which show a dialogue between the applicant and his assignment officer.  On 3 October 2013, the applicant was informed that a recalculation of his retirement points verified that he would not attain 18 years active federal service (AFS) by his mandatory retirement date (MRD).  He was also informed in accordance with (10 U.S.C. 14507(a)) and Army Regulation 600-8-24 (Officer Transfers and Discharges) that as a Reserve Component LTC not recommended for promotion to colonel (COL) he would be separated not later than the last day of the month in which he completed 28 years of commissioned officer service.
   
   b.  Orders C-11-316040, issued by HRC, dated 25 November 2013, which release him from the USAR Control Group (Reinforcement) and assign him to the Retired Reserve effective 1 January 2014, due to completing the maximum authorized years of service.

   c.  A letter, addressed to a Member of Congress, issued by the Chief, Leader Development Division, HRC, dated 17 December 2013, responding to an inquiry on behalf of the applicant who inquired why inactive duty points are not used in the calculation of AFS time.  The Chief stated the applicant was reaching his MRD effective 31 December 2013.  As a result, he must be transferred to the Retired Reserve.  He requested to be considered for the Sanctuary Program but he did not qualify since he did not have 18 years AFS.  As explained by their office and also by the HRC Inspector General (IG), the applicant must have      18 years of AFS by calculating active duty time only.  The inactive duty training time is used to calculate how much he will receive at age 60 for a nonstandard retirement but is not used to calculate AFS time.  
	
   d.  Orders C-12-390023, issued by HRC, dated 30 December 2013, which released the applicant from active duty effective 31 December 2013, and reassigned him to the USAR Control Group (Reinforcement).  Item (b) states the applicant is entitled to full separation pay per Title 10, U.S. Code (USC), 1174.
   
   e.  DD Form 214, dated 20 February 2014, which shows the applicant was honorably released from active duty on 31 December 2013, following 17 years,   8 months, and 3 days of total active service and 13 years, 3 months and 14 days of prior inactive service.  His DD Form 214 shows in:

(1)  Item 18 (Remarks), the entry "Separation Pay -- $140159.61"
   
   (2)  Item 24 (Character of Service), the entry "honorable";
   
   (3)  Item 25 (Separation Authority), the entry "AR (Army Regulation)     600-8-24, para (paragraph) 2-25A";
   
   (4)  Item 26 (Separation Code), the entry "LBK"; 
   
   (5)  Item 27 (Reentry Code), the entry "NA"; and
   
   (6)  Item 28 (Narrative Reason for Discharge), the entry "Completion of Required Active Service."

   f.  A letter, addressed to the applicant's spouse, issued by the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, dated 18 September 2014, which states that Army lawyers recently rendered a legal opinion and determined that AGR Soldiers removed from the Reserve Active-Status List (RASL) for years of service are not eligible for separation pay in accordance with Title 10, USC, subsection 1174.  By law (10 USC, subsection 14507(a)), since the applicant was not selected for continuation on active duty, he was removed from the RASL under 10 USC, subsection 14514.  Title 10, USC considered such separation as involuntary and subsection 14517 entitles officers to separation pay if eligible under subsection 1174.  As a result, all officers separated under subsection 14514 are not eligible for separation pay under subsection 1174, because "discharged" officers are referenced.  Officers who are separated under subsection 14514 and transferred to the Retired Reserve are not being discharged.  Consequently, an officer in this category, such as the applicant, is not entitled to separation pay.
   
   g.  Orders C-12-390023A01, issued by HRC, dated 26 February 2015, which amend Order C-12-390023 by stating the applicant is not entitled to full separation pay per Title 10, U.S.C. 1174.
   
   h.  DD Form 215, dated 2 March 2015, which deletes the entry regarding $140,159.61 in separation pay. 
   
6.  During the processing of this case, on 17 March 2015, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1.  The advisory official determined:

   a.  The applicant was not entitled to separation pay in accordance with         10 USC, subsection 1174 and Department of Defense Instruction 1332.29.  HRC issued a DD Form 215 to remove the separation pay entry from the DD Form 214 issued to the applicant on 20 February 2014.  Also, HRC amended the military order to reflect that there is no entitlement to separation pay.

   b.  On 5 August 2014, Army lawyers rendered a legal opinion and determined that AGR Soldiers removed from the RASL for years of service are not eligible for separation pay in accordance with Title 10 USC, subsection 1174.  By law         (10 USC, subsection 14507(a)), since the applicant was not selected for continuation on active duty, he was removed from the RASL under 10 USC, subsection 14514.  Title 10 USC considered such separation as involuntary and subsection 14517 entitles officer to separation pay if eligible under subsection 1174.

   c.  As a result, all officers separated under subsection 14514 are not eligible for separation pay under subsection 1174, because "discharged" officers are referenced.  Officers who are separated under subsection 14514 by being transferred to the Retired Reserve are not covered by subsection 14517, because by being transferred to the Retired Reserve they are not being discharged.  Consequently, an officer in this category, such as the applicant, is not entitled to separation pay.

7.  On 17 March 2005, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded with a 3-page rebuttal in which he states:
   
   a.  The Army did not provide him a DD Form 215 in February 2014.  If there was a DD Form 215, dated February 2014, why is he being provided a new     DD Form 215, dated 2 March 2015?  The new DD Form 215 was mailed to his home in March 2015.  He does not have a copy of the DD Form 215 dated February 2014 or the amended orders listed in Mr. L___'s letter to the Board.  Additionally, he had multiple conversations with Mr. L___ over the summer months and he never notified him that he had an amended DD Form 215 and orders.  If the DD Form 215 was completed in February 2014, then his Department of Veterans Affairs (VA) benefits would have been activated for him to receive his VA benefits one year ago.

   b.  Department of Defense Policy 1332.29 and 10 U.S.C. 1174 have been reviewed.  The RASL has no bearing on the terms of 10 U.S.C. 1174, under U.S.C. 1174, the applicant is entitled to separation pay due to involuntary separation.  Department of Defense policy 1332.29 states under 3.1.4.2-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 connected to be considered to have met this condition of eligibility for separation pay.  This is also stated in Department of Defense Financial Management Regulations, Volume 7A, Chapter 35, dated July 2013, which identifies his qualification for separation pay.  

   c.  He and his spouse have a perception that harassment exists based on their fact finding, IG complaints, and congressional inquiries which have yet to be fully answered.  Army leadership has consistently gone against their own regulations and federal law to tell him he does not qualify for separation pay, even creating two DD Forms 215.  He was told in 24 hours that he could not go into the sanctuary program but it took them 13 months to deny him a federal entitlement and hinder his VA benefits.  Army leadership failed to show respect and engage with him on this matter the entire time.  Army leadership are printing orders, DD Forms 215, and saying things without verifying/clarifying to him their position on the matter.  It is not his fault if the Army took a year to get a correct DD Form 215 signed while they attempted to clarify their position.  He was and still is entitled to separation pay as written in Department of Defense regulations and law.
   
   d.  Mr. L___ informed him during their conversations in the summer of 2014 that a legal opinion was being rendered on his account but he was never given this information.  He submitted a Freedom of Information Act request and discovered no legal opinion was ever rendered on his personal situation as indicated by Mr. L___.  He requested the opinion and was told he could not have access due to client confidentiality.  
   
   e.  Mr. L___ constantly stated he was discharged.  The applicant claims he was released/separated.  His orders (C-11-316039) state "Scheduled date of Separation" hence the title separation pay and his entitlement.  10 USC 14514 states:  Discharge or retirement for years of service or after selection for early removal.  The applicant falls under retirement for years of service and therefore the relating statues do pertain to his orders.  10 USC 14514 entitles officers to separation pay as clarified and stated in 10 USC 14516 and 14517, respectfully.  His separation code still indicates he receives separation pay.  HRC is adding a negative statement without justification.
   
   f.  Headquarters, Department of the Army, G-1, and HRC have failed to support the AGR Soldier in administering the processes for separation.  The Army denied his request for sanctuary within 24 hours and gave him only 4 months to separate over the Thanksgiving/Christmas holiday season from an overseas assignment.  He had been requesting information for over 5 years concerning the separation and his computation for his military time.  This is not in accordance with Army regulation and he was not given the proper amount of time for transitioning into civilian life which created undue stress on his family.
   
   g.  His initial orders were incorrect and stated that he was not entitled to separation pay.  HRC corrected his orders as the result of an IG complaint to include his separation pay on the last day of his military employment and apologized for their mistake.
   
   h.  A Defense Finance and Accounting Service representative told him that he was going to have to go to this Board to get his issue resolved.  She stated the Army G-1 told her not to pay his separation pay.  He asked her who from the G-1 office told her and she informed him that he would have to go to this Board.  DFAS leadership failed to follow Department of Defense 7000.14-R Financial Management Regulation, Volume 7A, Chapter 35, subsection 3502, Separation Pay (Non Disability), dated July 2013, which identifies his qualification for separation pay.  This tells him that he was singled out and harassed by key Army personnel who do not know their duty and have no personal courage to do what is right based on federal law and regulation regarding their processes and procedures.  Two military bases 20 miles apart in the National Capital Region have two processes for the same situation.  He would not be in this situation if he had attended Fort Belvoir, VA.  Other Soldiers in the exact same situation were processed and received their separation pay.  When he went to Fort Belvoir, the finance office leadership would not assist him and put road blocks up instead of resolving the situation.
   
   i.  Now over a year later the Army is stating he does not qualify, and has produced a never before seen DD Form 215, dated February 2014, and orders he has not seen.  They have not paid him or provided documentation to state why he is not receiving separation pay.  The Army has paid other Soldiers separation pay before and after his separation date, which have left the Army in the same situation.  If the Army has paid one other Soldier during this timeframe, then he should have been paid his separation pay pending the Army clarifying their legal opinion, procedures and processes.  Army personnel have taken it upon themselves to inflict undue harassment by denying him a federal entitlement without legal reason and affecting other entitlements to the Soldier.  Army Regulation 635-5-1 (Separation Program Designator Codes) identifies his separation code as involuntary release/transfer.
   
   j.  The Army has failed to provide the leadership to address this situation respectfully and has caused undue hardship through the harassment by extending this process unnecessarily.  The Army has not provided the correct answers which are stated by regulations and all agencies in which he has addressed this issue have been unable or unwilling to show him their answers in black and white.  He has had to cash in family savings and investments while he looks for another job and he has had to separate from his family while he obtains a job.
   
   k.  His request for clarification of his total military time has been ignored in his previous attempts for clarification.  Simply put, why has his military time not been calculated to see if he presently qualifies for retirement pay?  The calculation should be done now and if the calculation provides for 20 years of service, he should be able to collect his retirement immediately.  If his inactive duty training points convert to Active Federal Service in the future as identified by Army regulation/policy, then the calculation should be accounted for now.  Likewise, his retirement orders should reflect the National Defense Authorization Act authorization of 2008 for obtaining his retirement qualifications at an earlier age based on Army Regulation 600-8-7 (Retirement Services Program), paragraph  9-8.
   
   l.  He has done whatever the Army asked him to do, when they asked him to do it.  Army leadership is failing to follow their own regulations and federal law.  They are failing to do their job as required by law without accountability to the Soldier and Veteran.  

8.  Department of Defense Instruction 1332.29 states, in pertinent part, that full payment of non-disability separation pay is authorized to members of the Reserve components involuntarily separated from active duty who meet each of following four conditions: 

	a.  The member is on active duty or full-time National Guard duty and has completed at least 6 years, but fewer than 20 years, of active service.  For Reserve members not on the active duty list when separated, 6 years of continuous active duty or full-time National Guard duty must have preceded immediately before such separation. 

	b.  The Service member's separation is characterized as honorable.

	c.  The Service member is being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on active duty or full-time National Guard duty, under one of the following specific conditions – 
		
          (1) The member is fully qualified for retention, but is 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. 

		(2)  The member is fully qualified for retention and is being involuntarily separated under a reduction in force by authority designated by the Secretary of the Military Department concerned.

		(3)  The member is a Reserve commissioned officer, other than a commissioned warrant officer, separated or transferred to the Retired Reserve under an applicable chapter of 10 U.S.C.; or a Reserve commissioned officer on the active duty list or a Reserve warrant officer who is separated for similar reasons under Service policies.

	d.  The Service member has 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 the separation from active duty.

9.  The Department of Defense Financial Management Regulation reiterates the separation pay criteria listed in Department of Defense Instruction 1332.39.  Paragraph 350201.A.3 states 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 four specific conditions.  Paragraph 350201.A.3.a states 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.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-33e, states that, unless continued on the RASL or credited with 18 or more but less than 20 years of qualifying service for retired pay, each LTC who is not on a list of officers recommended for promotion to colonel will be removed from the RASL on the first day of the month after the month in which the officer completes 28 years of commissioned service.  

11.  Title 10, USC, section 14507, states, in pertinent part, that unless continued on the RASL or retained under another section of this title each Reserve officer of the Army who holds the grade of LTC and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the RASL) be removed from that list on the first day of the month after the month in which the officer completes 28 years of commissioned service.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  Additionally, applicants may be represented by counsel at their own expense. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

2.  The applicant completed 28 years of commissioned service on 31 December 2013.  His MRD was 1 January 2014, the first day of the month after the month in which he completed 28 years of commissioned service.  The record shows his separation date was 31 December 2013, one day prior to his MRD.  

3.  The applicant's and his family's service, sacrifice and sincerity are not in question; however, notwithstanding his contentions in reference to his treatment by HRC and G-1 personnel, and the change to his separation orders, there is no basis for paying him separation pay.  Under Federal law, he was not eligible for retention because he was an LTC who was not on a promotion list and had completed 28 years of service.  The law provides for exceptions, but only under limited circumstances.  Because he was not eligible for retention, he did not meet one of the requirements for receipt of separation pay, and all requirements must be met to receive this pay.  

4.  He indicates other Soldiers received separation pay under circumstances similar to his own.  The Board is not an investigative body.  It considers evidence brought before it and evidence readily available in an applicant's personnel records.  Even if there were documentary evidence indicating an individual received separation pay under similar circumstances, it appears such a decision would have been made in error.  An error benefiting another individual is not a basis for granting 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)                                         AR20140021118



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ABCMR Record of Proceedings (cont)                                         AR20140021118



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