PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 January 1999                   
	DOCKET NUMBER:   AC98-12371
				   AR1998012408

	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. Loren G. Harrell		Director	
	Mr. Vic Whitney.		Analyst	

  The following members, a quorum, were present:

	Ms. Karen J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John P. Infante		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his DD Form 214 (report of separation) be corrected to show that he did not receive separation pay in the amount of $5,486.22.  He also believes that the days accrued leave he was paid is incorrect.

3.  The applicant states that according to his records he had 15 days leave remaining when he was separated, not 7 days.  Additionally he did not receive separation pay as shown on his DD Form 214 and separation orders.

4.  The applicant’s military records show that he enlisted and entered active duty on 10 April 1986.  He completed training as a cannon crewmember and served in the US and Germany.

5.  While serving at Fort Hood, Texas he was involved in a vehicle accident which resulted in injuries to his left hip, leg, knee, and ankle.  A line of duty investigation resulted in a determination of “Not in line of duty”, “Due to own misconduct” because of alcohol involvement.

6.  After completion of a medical evaluation board and a physical evaluation board the applicant was recommended for separation by reason of physical disability without severance pay.  Effective 14 July 1993 the applicant was discharged under authority of Army Regulation 635-40, paragraph 4-24b(4).  He had 7 years, 3 months, and 5 days creditable service and no lost time.

7.  His separation orders, dated 7 July 1993, contain the notation that he was “entitled to one-half separation pay IAW 10 USC 1174.”  In the remarks block of the applicant’s DD Form 214 it shows that he received separation pay in the amount of $5,486.22.  The DD Form 214 also shows that he was paid for 7 days accrued leave.

8.  Information provided by the Defense Finance and Accounting Service (DFAS) to a member of Congress states that, as of 2 October 1997, the applicant had a debt of $4,354.84 to the US Government.  This was a result of 13 days excess leave as of the date of separation, a separation pay benefit that he was not entitled to, and several uncollected casual payments.  The DFAS also states that penalties, administrative fees, and accrued interest on the debt was added for new total of $5,747.80.

9.  A statement of military leave account provided by the DFAS shows that the applicant was erroneously separated by the finance system on 20 November 1992.  At that time the applicant was paid for the 31 days leave he had accrued up to that date.  When his finance account was restored to the active duty system neither finance nor the applicant took steps to restore his leave balance through repayment of the leave he was paid for.  His leave balance in December 1992 was 3 days.

10  From December 1992 through his separation on 14 July 1993 he earned 19 days leave.  During the same period he took 32 days leave with a balance on separation of minus 13 days leave.

11.  On 30 December 1996 the VA informed the applicant that as of that date they had withheld $5,165 with a remaining balance to be withheld of $321.22.  The VA stated that this amount was being withheld because of the applicant’s records that showed he was in receipt of $5,486.22 from a special separation benefit payment from the US Army.

12.  The 2 October 1997 letter from DFAS to a member of Congress concerning the applicant’s indebtedness notes the 30 December 1996 letter from the VA.  The DFAS recommends that the applicant provided a copy of their letter to the VA, along with a corrected DD Form 214, as evidence to the VA that he was not entitled to separation pay, that the DFAS has collected the erroneous overpayment, and that he is entitled to repayment of the recouped funds from the VA.

13.  Army Regulation 635-40 provides policies for the disposition of soldiers who are found unfit to perform their duties by reason of physical disability.  Paragraph 4-24b(4), the paragraph that applied to the applicant’s separation, states that it is separation for physical disability without severance pay as provided by Title 10, USC.

CONCLUSIONS:

1.  The applicant’s separation orders incorrectly state that he was “entitled to one-half separation pay IAW 10 USC 1174.”

2.  The applicant’s DD Form 214 shows that he was paid for 7 days leave when the entry should show “None”.  The applicant was paid for 31 days leave in November 1992 and he has not shown that he ever paid back the DFAS to restore his leave account.

3.  His DD Form 214, in the remarks block, states that he was paid $5,486.22 separation pay when it should have stated that he was not entitled to separation pay.  Although he did receive this money at separation the DFAS is in the process of collecting this debt.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by amending the applicant’s separation orders of 7 July 1993 to delete item (a) (1) which shows entitlement to separation pay and enter the appropriate remark to show that he was not entitled to separation pay; and

b.  by correcting his DD Form 214, block 16, to show “None”, block 18 by deleting “Separation Pay $5,486.22” and inserting the appropriate statement for no entitlement to separation pay

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

___KJN__  __FNE___  ___JPI__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Karen J. Newsome
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-12371/AR1998012408	
SUFFIX		
RECON		
DATE BOARDED	19990121	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.	121.02	
3.		
4.		
5.		
6.