RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 February 2006
      DOCKET NUMBER:  AR20050008478


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. John M. Moeller               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be provided separation pay
based on his involuntary separation of 29 January 2000.

2.  The applicant states, in effect, that up until the time of his
separation all officers had been receiving separation pay.  He claims that
he stayed on active duty after the first time he was passed over for
promotion for one year, which included a six month assignment in Bosnia, in
order to qualify for separation pay. He states that before and after his
rotation to Bosnia, he called and verified that he would be entitled to
separation pay.  He claims that only when he received his packet was he
informed that the policy had changed for Reserve commissioned officers, and
he would not receive separation pay.  He states that several officers
submitted cases protesting the policy change, but no results were announced
at the time.  However, a year ago, he learned that the policy had changed
and they had received separation pay.

3.  The applicant provides his separation document (DD Form 214) and a copy
of Interim Change 07-01 to Volume 7A of the Department of Defense Financial
Management Regulation (DODFMR) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he was commissioned a second
lieutenant in the United States Army Reserve (USAR) on 16 October 1987, and
he entered active duty in that status.

2.  The applicant was promoted to first lieutenant on 16 October 1989 and
to captain on 1 May 1992.

3.  United States Army Combined Arms Support Command & Fort Lee, Fort Lee,
Virginia Orders Number 007-0171, dated 7 January 2000, directed the
applicant’s release from active duty (REFRAD) on 29 January 2000.  These
orders did not authorize separation pay.

4.  On 29 January 2000, the applicant was honorably REFRAD after completing
12 years, 3 months, and 14 days of active military service.  The DD Form
214 he was issued confirms he was separated under the provisions of
paragraph 2-5 or 2-11, Army Regulation 600-8-24, for miscellaneous/general
reasons and was assigned a Separation Program Designator (SPD) code of MND.


5.  On 30 January 2000, the applicant entered the Active Guard Reserve
(AGR) program and was assigned to Headquarters, USAR Support Center,
Arlington, Virginia and reentered active duty in this status.

6.  On 10 August 2000, the applicant was promoted to major in the United
States Army Reserve (USAR).

7.  On 9 May 2005, the Director, Army Reserve Active Duty Management
Directorate, Human Resources Command (HRC)-St. Louis, notified the
applicant that he was not recommended for an extension on active duty in
the AGR program.  His retirement/removal date was identified as 28 February
2007.

8.  The applicant provides DoDFMR Interim Change 07-01, effective 30
October 2000, which revised the rules for entitlement to separation pay.
It provided, in pertinent part, guidance on when a separation of a Reserve
officer twice passed over for promotion, who had been selected for
continuation on active duty, was to be considered involuntary.  This change
did not provide retroactive provisions.

9.  Title 10 of the United States Code, Section 1174 provides the legal
authority for separation pay upon involuntary discharge or REFRAD.  It
states, in pertinent part, if the Secretary concerned determines that the
conditions under which a member is discharged or separated does not warrant
separation pay under this section, that member is not entitled to that pay.


10.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes
the officer transfers from active duty to the Reserve Component (RC) and
discharge functions for all officers on active duty for 30 days or more.
Paragraph 2-5 provides the rules for processing voluntary REFRAD due to
personal reasons.  It states if eligible, an officer may request REFRAD
whenever such action is considered appropriate.  Paragraph 5-11 provides
the rules for processing voluntary REFRAD essential to national interest.
It states that an officer may request REFRAD to provide more valuable
service (in civilian capacity) to the nation.  The request must be
motivated by national interest and not personal desire.

11.  A Defense Finance and Accounting Service (DFAS) matrix regarding
payment of separation pay, dated 15 March 2004, confirms that officers
separated with an SPD code of MND are still not authorized Separation Pay,
Readjustment Pay, or Severance Pay.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was separated under the
provisions of paragraph 2-5 or 2-11, Army Regulation 600-8-24, for
"Miscellaneous/General Reasons" on 29 January 2000.  The DD Form 214 he was
issued upon his separation confirms he was assigned a SPD code of MND based
on the authority and reason for his separation.  The record further
confirms that the applicant immediately reentered active duty as a member
of the AGR program, and has continued to serve in that status through the
present date.

2.  Lacking evidence to the contrary, it is concluded the applicant's
separation processing, to include the SPD assignment, was accomplished in
accordance with the applicable regulation.  All requirements of law and
regulation were met, and his rights were fully protected throughout the
separation process.

3.  Notwithstanding the Interim Change to the DoDFMR provided by the
applicant, the evidence confirms that the applicant was not authorized
separation pay at the time of his release from active duty and that his
separation was to allow his entry on active duty as a member of the AGR
program.  Further, the current DFAS separation pay matrix confirms that
officers assigned an SPD code of MND are still not authorized Separation
Pay, Readjustment Pay, or Severance Pay upon separation from active duty.
=
4.  Further, even had the applicant qualified for separation pay under the
revised rules contained in the Interim Change identified, he still would
not be entitled to separation pay because he was separated more than nine
months before the effective date of the change, and there were no
retroactive provisions provided in the implementation instructions.
Therefore, there is an insufficient evidentiary basis to support granting
the requested relief at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___HOF _  __CAK__  __JMM __  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.




                                  _____Hubert O. Fry________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008478                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/28                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2000/01/29                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Misc/Gen Reasons                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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