DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S, COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
BIC
Docket No. NR4265-14
17 Mar 15
This is in reference to your application for correction of your naval
record pursuant to the provisions of 10 USC 1552.
A three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on
16 March 2015. Your allegations of error and injustice were reviewed
in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material
considered by the Board consisted of your application, together with
ali material submitted in support thereof, your naval record and
applicable statutes, regulations and policies.
After careful and conscientious consideration of the entire record,
the Board found that the evidence submitted was insufficient to
establish the existence of probable material error or injustice. In
accordance with Commander, Navy Personnel Command message dated 28 May
2013, you were rated at 10% disabled, and were to be separated with
disability severance pay. Furthermore, you were frocked to E4 prior
‘to separation, discharged on 13 June 2013, and authorized disability
severance pay in the amount of $11,878.28, per DD Form 214
(Certificate of Release or Discharge from Active Duty/Evaluation
report & Counseling Record). However, in accordance with your
request, you were only paid $10,724.40, after taxes. Nevertheless,
DOD Financial Management Regulation, Volume 7A, Chapter 35, 350404 (26
U.S.C. 104/St. Clair v. U.S. 778 F. Supp 894), states the following:
“Disability severance pay is normally taxable income. It is not
subject to tax withholding or reporting, however, if at least one of
the following three conditions exists: 1. On September 24, 1975, the
individual was either a member of a Uniformed Service or was under a
binding written commitment to become a member. 2. The entitlement
resulted from combat-related injury or illness, as determined by the
Secretary of the Military Service concerned (or designee), which
happens as a result of any of the following activities: a. As a direct
result of armed conflict. b. While actually performing extra-
hazardous service, even if the service does not directly involve
Docket No. NR4265-14
combat. ¢. Under conditions simulating war, including maneuvers or
training. d. By an instrumentality of war, such as weapons, 3. The
member has official notification from the VA approving entitlement to
disability compensation for the same illness or injury that caused the
entitlement to disability severance pay.” The Board found no evidence
that your meet any of the above exceptions. Accordingly, your.
application and your request for a personal appearance before the
Board have been denied. The names and votes of the members of the
panel will be furnished upon request.
It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the Board
reconsider its decision upon submission of new evidence within one
year from the date of the Board's decision. New evidence is evidence
‘not previously considered by the Board prior to making its decision.in
this case. In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the existence of
probable material error or injustice.
ROBERT J. O'NEILL
Executive Director
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