PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 June 1999                   
	DOCKET NUMBER:   AR1998012773

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Gary C. Miller		Member	
	Mr. Curtis L. Greenway		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, in effect, that the Separation Designator Code (SPD) on his DD Form 214 be corrected and that his indebtedness be cancelled.

3.  The applicant states, in effect, that his indebtedness was a result of the incorrect SPD.  Supporting documentation is as listed on the DD Form 149 (payroll documents are largely illegible).

4.  The applicant’s military records show that he enlisted in the Army National Guard in July 1970.  He was voluntarily ordered to active duty in an active guard/reserve (AGR) status on 1 April 1986.

5.  On 19 February 1993, the applicant was flagged for APFT (Army Physical Fitness Test) failure effective 21 October 1992.  Presumably as a result of this flagging action, he was involuntarily separated from his AGR tour (the separation action is not available).

6.  On 30 April 1993, the applicant was released from active duty with an honorable characterization of service, in pay grade E-7, after completing over 22 years of creditable service for pay.  His DD Form 214 shows his separation code as LFT (involuntary release from active duty for failure to meet physical standards).  The remarks block shows that he was authorized separation pay per table 4-4-6, rule 8 of the Department of Defense Pay Manual (DODPM).

7.  In August 1993, a routine review of the applicant’s military pay accounts determined that he owed the government $12,316.09 as a result of overpayments of pay and allowances. 

8.  The applicant was discharged from the Army National Guard and assigned to the Retired Reserve effective 20 December 1994.

9.  The DODPM, table 4-4-6 (Separation Pay Entitlement and Computation), rule 8 states that a Reserve enlisted member who is involuntarily released from active duty because of unfitness or unsatisfactory performance, among other reasons, was entitled to not more than $15,000 in separation pay.  Note 8 of this table also states that the entitlement provisions apply through 19 June 1991.

10.  The DOD Financial Management Regulation (DODFMR), which superseded the DODPM, states that effective 20 June 1991, full payment of nondisability separation pay is authorized to members who are involuntarily separated from active duty and who meet each of four conditions, including being involuntarily separated through either the denial of continuation on active duty or full-time National Guard duty under one of four specific conditions:  fully qualified for retention but is denied continuation; fully qualified for retention but is being involuntarily separated under a Reduction in Force; is a Regular officer; or is denied continuation on active duty or full-time National Guard duty as noted above and accepts an earlier separation from active duty.

11.  Army Regulation 600-8-2 prescribes policies governing the suspension of favorable personnel actions (flagging actions).  In pertinent part, it states that flags for APFT failure block promotion, reenlistment, and extension.

12.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  The NGB noted that the applicant’s SPD code should have been JFT (involuntary discharge for failure to meet physical standards); however, this SPD would not have entitled him to receive separation pay, either.  The NGB also noted that while the applicant may not have been aware that he should not have received separation pay, he should have known that he was being overpaid in April, May, June and July 1993.  The NGB recommended that he be held responsible for the amount of monies he received for those months but that the Board exercise leniency for the monies he received for separation pay.

13.  A copy of the advisory opinion was provided to the applicant.  He did not respond within the given time frame.  

CONCLUSIONS:

1.  The Board concludes that a Government error did occur in this case.

2.  Although the applicant’s involuntary separation paperwork is not available, his DD Form 214 indicates he was separated due to failure to meet physical standards.  This would be in accord with his flagging action for APFT failure.  Notwithstanding the advisory opinion, the SPD shown on his DD Form 214, LFT, appears to be correct as he was involuntarily released from active duty and not involuntarily discharged from active duty.  That is a moot point as effective        20 June 1991 neither SPD qualifies a member for separation pay (as the applicant was flagged for APFT failure, he was not fully qualified for retention).  However, separation authorities had authorized him separation pay in the amount of $9,625.67 based upon an entitlement that expired on 19 June 1991. 

3.  Evidence shows that between 30 April and 15 July 1993 applicant was paid, in addition to his normal active duty pay for the month of April 1993, additional mid-month, end-of-month, and casual payments.  The applicant has provided no evidence/legible evidence to show that these payments could account for inactive duty drill payments and so this appears to be a valid debt.  As a senior non-commissioned officer, the applicant had a responsibility to himself to question these payments as he received them.  

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by canceling that portion of the applicant’s debt as applies to the separation pay.

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

BOARD VOTE:  

__RVO__  __GCM__  __CLG__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998012773	
SUFFIX		
RECON		
DATE BOARDED	19990624	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.