MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            6 May 1999
	DOCKET NUMBER:   AR1998012185

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

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Carol Jo Suiter		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that she be paid separation pay for her active duty service.

APPLICANT STATES:  In effect, that initially she was informed that she would receive separation pay; however, after her service was calculated she was informed that she was not entitled to receive separation pay.  She goes on to state that if her service were properly calculated she would have over 6 years of active service.

EVIDENCE OF RECORD:  The applicant's military records, although incomplete, show:

The applicant was appointed as a USAR commissioned officer in the rank of captain in the Army Nurse Corps on 16 November 1979.  She was assigned to the USAR Control Group (Troop Program Unit) and was promoted to the rank of major on 6 March 1989.

She was ordered to active duty on 8 January 1991 in support of Operation Desert Shield/Storm and remained on active duty until she was honorably released from active duty and was transferred back to her USAR unit on 26 January 1992.  She had served 1 year and 19 days of active service during that period.

She was again ordered to active duty on 6 March 1992 and remained on active duty until she was again released from active duty on 31 December 1995 due to being twice non-selected for permanent promotion.  She was transferred to a USAR Troop Program Unit and had served 3 years, 9 months, and 25 days of total active service during that period of service.

In the processing of this case an advisory opinion was requested from the Army Reserve Personnel Command (ARPERSCOM).  The ARPERSCOM recalculated the applicant’s service and determined that the applicant has 19 qualifying years of service for retirement purposes (USAR retirement at age 60).  The opinion makes no mention of the applicant’s total active service.  The opinion was forwarded to the applicant for comment and to date no response has been received by the Board.

Department of the Army Circular 635-92-1 outlines the criteria for separation pay and consolidates the various interim instructions previously released resulting from the enactment of Public Law 101-510, “National Defense Authorization Act for Fiscal Year 1991” amending Title 10, U.S. Code, section 1174 and Department of Defense Instruction 1332.29, “Eligibility of Regular and Reserve Personnel for Separation Pay”.  It states, in pertinent part, that separation pay is authorized for soldiers who are on active duty or full time National Guard duty and has completed at least 6 years, but less than 20 years of active service.  Reserve members not on the active duty list when separated must have 6 years of continuous active duty service with no breaks in service exceeding 30 days.  Members (other than regular enlisted members) who were on active duty on 5 November 1990, and on that date had 5 or more, but less than 6 years of active service as of that date are also eligible to receive separation pay.  Reserve members not on the active duty list when separated must have 5 years of continuous active duty or full time National Guard duty immediately preceding separation.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Although the Board cannot determine, based on the available records, the total amount of active Federal service the applicant had completed at the time of her release from active duty, there is sufficient evidence to show that she did not have the minimum amount of continuous active service (without a break of 30 days or more) preceding her separation to qualify for separation pay. 

2.  The applicant’s last two period of active duty are documented in the available records and show that she had a 40-day break in service during the 4 years, 10 months, and 15 days of active service she performed between 1991 and 1995.  

3.  Accordingly, based on the available evidence and the applicable regulations, the applicant was not authorized to receive separation pay at the time she was released from active duty.

4.   In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___cs ___  __fe ____  ___ewl__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012185	
SUFFIX		
RECON		
DATE BOARDED	1999/05/06	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  291	128.0800/SEPERATION PAY	
2.		
3.		
4.		
5.		
6.