PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            6 July 2000                  
	DOCKET NUMBER:   AR1999026557

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		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 he receive credit for 20 years of active Federal service and retired in the rank and pay grade of CW4, W-4.
•	That he receive pay and allowances in pay grade W-4 from 1 October 1996, the date of his promotion to that grade, until the date that he is retired.
•	That he be allowed to retain the civilian pay that he has earned since his release from active duty, and not be required to compensate the government based on the deduction of his civilian pay from back pay and allowances resulting in reinstatement to active duty, or credit thereof.
•	That he be reimbursed for all medical and dental expenses he and his family incurred after his release from active duty.
•	That he be granted relief from any time suspense incurred since his last appeal, to include the application of this appeal.      

3.  The applicant states that he is appealing the decision by the Defense Finance and Accounting Service (DFAS) in Denver to deduct civilian earnings from accrued back pay to determine monetary entitlements, when a person is returned to active duty after a period of separation.  He states that after receiving an invitation to return to active duty as a CW4, he was notified by DFAS that his civilian earnings would be deducted from the back pay the military owes him.  He states that the Comptroller General decision is vague and has no explicit policy determination, is out-of-date with current practices of holding civilian employment while on active duty, and is out-of-date with current civilian employee rights when civilian employers must reinstate employees after a wrongful discharge.  He also states that the determination of his case was unreasonably delayed by this Board.  

4.  The applicant states that the Comptroller General Decision B-15421 implies that it does not require mandatory deduction of interim civilian earnings, but that the wording of that decision leaves it sufficiently broad so that the secretary concerned may correct or remove an injustice.  He states that he asked to be retained on active duty until his appeal was settled.  That did not occur and he was forced to separate and seek civilian employment.  Then he was later selected for promotion with a retroactive date of rank.  The actions were the fault of the Army, not his.

5.  The applicant states that the decision is out-of-date with current practices concerning thousands of military personnel on active duty.  He states that the argument in the decision is to prevent the returning soldier from being enriched by two incomes; and that the argument by DFAS is that it is unfair to the soldier who remains on active duty and cannot earn a second income.  He states that his condition whereby he was forced to seek civilian employment was caused by the Army.  He states that using a 1964 dual compensation interpretation is outdated and does not account for the many precedence-setting decisions regarding employee rights.  The argument that retaining civilian earnings with back pay is unfair because active duty members do not have an equivalent opportunity is also outdated.  He knows of active duty members that own or operate civilian businesses in addition to military duties.

6.  The applicant quotes a portion of Title 10 USC 1552, and states that nowhere in that section does it say that his pay would be reduced by the income he earned as a civilian.  He states that despite the information provided by DFAS concerning reduction of civilian earnings in the computation of net back pay, based upon extra taxes and medical expenses he incurred, he believes that the term emoluments used in 1552 covers such expenses as being reimbursable. 
He questions whether the DFAS would provide any reimbursement if he had lost his house or automobile because of unemployment, stating that the applied interpretation is one-sided.

7.  The applicant refers to a federal case concerning back pay, states that soldiers on active duty do have opportunities to make dual incomes, and having that ability is not as rare as DFAS wants one to believe.  He states that many court cases have substantiated an award of back pay.  

8.  The applicant again quotes 10 USC 1552, the portion of which states that final action on an application for correction of military records will be taken within       10 months of receipt.  He states that his first appeal was in 1992, an appeal of the rank at which he was reinstated to active duty.  He states that he requested removal of Officer Evaluation Reports, and that it took this Board 16 months to finalize his appeal.  

9.  The applicant compares a 1991 Board case with his case, in which the Board agreed that the rater portion of the [applicant’s] first OER did not represent a fair, objective, and valid appraisal of his performance; and that in effect, the OER should be removed from the officer’s record and that he should be reconsidered for promotion to Colonel.  The applicant states this high ranking officer had all three OERs removed; and he implies that his OERs, which covered short periods of time while on Reserve duty, were not removed, and is an injustice to him.  He states that another reason why he considers his case to be an injustice is because he requested the Army to retain him in grade until his appeal was finalized, and was denied that opportunity, despite the critical shortage of personnel in his specialty.  He states that the secretary had great latitude in deferring separation from active duty because of unavoidable circumstances.  He states that the Army did very little to assist him in his attempts to correct his record.  

10.  The applicant states that he should be considered for retirement instead of return to active duty.  A return to active duty to serve approximately two years to complete a twenty year retirement would create an undue hardship for his family. He cites a case in which a person was granted credit for his time served and retired.  He states that he had requested retirement at his second non-selection for promotion, but his request was denied because he had not elected the option before his second non-selection.  He states that he had an appeal working, and if he had selected that option, he would have given up his right to appeal his OERs.  He states that were he to return to active duty he would be just as non-competitive for CW5 as he was for CW4.

11.  In a 21 June 2000 facsimile to an analyst of this agency, in response to a request for a copy of his DD Form 214, the applicant expounded on his request, stating that he wanted to remain on active duty, pending the outcome of his appeal, but his request to do so was denied.  He reiterated that the government was at fault for not extending him on active duty, in effect, causing the current situation.  He also repeated his contention that he should not have to give up the civilian income he earned should he be reinstated to active duty, again stating that his situation was no fault of his own.  He goes on to say that although he has no problem with reimbursing the government the separation pay that he received, the government’s collection of “all the before tax separation pay,” would leave him the responsibility of collecting the tax from the IRS, with no reimbursement for expenses he would incur hiring a tax accountant.  He states that DFAS will not reimburse him for medical or cost of medical insurance or any other expenses he incurred since his discharge. 

12.  In November 1996 the Acting Director of this Board informed the applicant that his original application to this Board was denied on 11 January 1995, and that in reviewing his application, there was no record that indicated that he had previously requested the removal of one or more OERs from his records.   

13.  On 10 February 1997 the applicant requested release from active duty on     1 March 1997 and that he be placed on the retired list on 1 March 1997.  He requested an exception to policy of retirement eligibility, stating that he was a two-time non-select for promotion to CW4.  He states that as of 1 March 1997 his total active duty time would be 15 years, 4 months, and 1 day, meeting the       15-year retirement eligibility requirement.  Although information is not available, his request was apparently disapproved. 

14.  The applicant was discharged from the Army on 1 March 1997.  He had        15 years, 4 months, and 1 day of active service, and 9 years and 19 days of inactive service.  He received involuntary separation pay estimated at $59,714.06.

15.  On 11 March 1998 this Board directed that one of the applicant’s OER be voided and removed from his records (COPY ATTACHED), and that his records be submitted to special selection boards for promotion consideration to the rank of CW4, and if selected, he be invited to return to active duty, promoted, and assigned an appropriate date of rank. 

16.  On 16 November 1998 the Total Army Personnel Command (PERSCOM) promoted the applicant to CW4 effective and with a date of rank of                       1 October 1996.  On 17 November 1998 the PERSCOM invited him to return to active duty.

17.  On 3 February 1999, in response to a Member of Congress, the DFAS at Denver stated that they had provided a reinstatement fact sheet that would be used in computing the applicant’s account should he elect to return to active duty.  That agency also stated that his entitlements and offsets could not be computed until inclusive dates were received for the reinstatement period, should he elect to return to active duty.  The DFAS stated, in effect, that any earnings from civilian employment during the period of reinstatement would be deducted from the back pay and allowances granted.  The DFAS indicated that the correction of records law was not intended to place members or former members whose records were corrected, in a more advantageous position than members who remained in the service and received like pay and allowances, but no additional civilian earnings.

18.  On 20 June 2000 the DFAS informed an analyst of this Board that the portion of civilian pay that would be deducted from the applicant’s due pay and allowances for the period in which he is reinstated, would not exceed his due pay and allowances.  The applicant would retain any civilian earnings in excess of his due pay and allowances.  The DFAS also revealed that the applicant should submit a claim, with all receipts, to the DFAS for reimbursement of medical and dental expenses incurred for the period of reinstatement.  Because of the applicant’s 21 June 2000 statement that the DFAS would not reimburse him for his medical expenses, the DFAS was again contacted on 26 June 2000, and that agency reiterated that the applicant should submit a claim, with all receipts, to the DFAS for the period of reinstatement.   

CONCLUSIONS:

1.  The applicant was promoted to CW4 retroactive to 1 October 1996 by a special selection board.  Had he been promoted while on active duty he probably would have remained on active duty until completion of 20 years of active federal service, and would have been eligible to retire on 31 October 2001.

2.  The applicant was discharged with separation pay on 1 March 1997.  He has now been out of the service for over 3 years.  The Board agrees with the applicant that to recall him to active duty would create a hardship for him, and also agrees that he would not be competitive for promotion to CW5.  His recall to active duty would be an injustice to him.  Nonetheless, had the applicant remained on active duty, he would not have completed 20 years of active federal service until 31 October 2001.  The Board is reluctant to grant the applicant service credit until that future date.  Consequently, considering the circumstances of his case, and in all fairness to the applicant, he should be credited with having served on continuous active duty until 30 June 2000, an arbitrary date established by this Board.  The applicant’s discharge from the Army on               1 March 1997 should be null and void and of no force or effect.  He should then be retired in the rank and pay grade of CW4 with retirement pay accruing from     1 July 2000.  He should be issued a new DD Form 214 reflecting this information, to include the correct record of service data.  He should receive all back pay and allowances based on his pay grade of CW4 from the date of his promotion to that grade on 1 October 1996, until the date of his retirement. 

3.  The applicant should reimburse to the government the separation pay that he received upon his release from active duty on 1 March 1997.  The Board notes the applicant’s displeasure with the information from DFAS that the gross amount of his separation pay would be deducted from any due back pay and allowances. 

4.  The applicant’s arguments concerning deduction of his civilian earnings from his back pay and allowances are well noted.  Nonetheless, this Board believes, and the Comptroller has indicated by its decision, that to not offset earnings from civilian employment during any period of reinstatement in the Army, or credit thereof, would result in an unfair advantage to solders who remained in the service and did not receive civilian earnings.  The applicant has stated that he knows at least three individuals in his small circle of acquaintances that own or operate civilian businesses in addition to their military duties.  It can be assumed that the applicant also knows many other soldiers that do not own or operate civilian businesses, or do not have civilian jobs in addition to their military duties. Soldiers may now have more opportunities for civilian employment than in the past, and may work second jobs, as the applicant has stated.  However, the Board realizes and recognizes that a soldier’s duties and responsibilities are unique.  Unlike his civilian brethren, he is liable to duty 24 hours a day, 7 days a week, is world wide deployable, and liable for movement at any time.  His duties, and his assignment location, especially overseas, limits his opportunities, thereby limiting his civilian employment.  His military duties are foremost.  The Board therefore reasons that the Comptroller General decision is not as out-dated as the applicant believes.  Furthermore, to grant the applicant relief from deduction of his civilian pay that he earned during the period of reinstatement, or credit thereof, would accept the proposition that he would have worked, either part-time or full-time in a civilian job, while at the same time performing his military duties.  This is speculative, and the Board does not accept this premise.  

4.  The applicant should be issued a certificate showing that he was promoted to Chief Warrant Officer Four on 1 October 1996.  He should be issued a certificate of retirement in the rank of Chief Warrant Officer Four, showing a retirement date of 30 June 2000.

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 by: 

     a.  showing that the applicant served on continuous active duty until              30 June 2000.  His discharge on 1 March 1997 is null and void and of no force or effect;
 
     b.  showing that the applicant retired from the Army effective 30 June 2000 in the rank and pay grade of CW4 W4.  He should be issued a new DD Form 214 reflecting this information, to include the correct record of service data;

     c.  reimbursing the applicant all due pay and allowances in pay grade W4 from 1 October 1996 to his retirement date, offset by the separation pay that he received from the government; and

     d.  issuing the applicant a certificate showing that he was promoted to Chief Warrant Officer Four on 1 October 1996, and issuing him a certificate of retirement in the grade of Chief Warrant Officer Four, showing a retirement date of 30 June 2000. 

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

BOARD VOTE:  

___emw_  ___jpi___  ___cmf__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026557	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000706	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  233	110.00	
2.	128.00	
3.	136.00	
4.		
5.		
6.