PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           5 December 2000                  
	DOCKET NUMBER:   AR2000034945

	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. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Jose A. Martinez		Member	
	Mr. Allen L. Raub		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 reconsideration of the Board’s prior action and rescind its favorable decision of 3 November 1999 transferring her to the Retired Reserve.

3.  The applicant states, in effect, that approval of her request for transfer to the Retired Reserve has resulted in a demand from the Defense Finance and Accounting Service that she repay $41860.80 in disability severance pay she received when she was released from active duty.  She is unable to meet such a huge financial obligation and believes it will result in her bankruptcy if the Board’s favorable decision is not rescinded.

4.  The applicant’s military records show that on 19 August 1994 she was honorably discharged from active duty as an Active Guard Reserve soldier for disability reasons with severance pay in the amount of $41860.80.  On              20 February 1997 she requested that her discharge be changed to a transfer to the Retired Reserve.  Docket number AC97-11551, dated 22 July 1998 reflects the Board approval of her request.

5.  Subsequent to approving her initial request for transfer to the Retired Reserve, the Full Time Management Support Directorate, AR-PERSCOM, and the staff of the Board, advised her that if implemented, her request could have an adverse financial impact on her.  Specifically, such a transfer would result in the collection of her disability severance pay and, since she did not have the minimum time required for retirement at age 60, she would never receive retired pay.

6.  The applicant persisted in her request for transfer to the Retired Reserve and on 3 November 1999 the Board approved the request which is contained in docket number AR1999032667.  Consequently, her discharge for physical disability was voided and she became liable for immediate repayment of the $41860.80 (plus interest) that she had received in disability severance pay.  She now realizes that her request for transfer to the Retired Reserve was not thoroughly considered and the financial ramifications are so severe that it would be in her best interest to have the Board’s decision rescinded.

CONCLUSIONS:

1.  The applicant was advised of the probable adverse financial implications if her physical disability discharge was invalidated.  Despite the warnings, however, she reiterated her desire for the transfer.  The Board believing that she had made an informed decision consented to her wishes and approved her request.  Since then the financial impact of her decision has caused her to ask that the favorable decision in her case be rescinded.

2.  Notwithstanding the foregoing, it is general policy of the Agency not to cause an applicant to be worse off than he or she would have been had the Board not acted in the case.  Therefore, as a matter of equity, it would be appropriate to rescind the Board’s previous approvals in this case and place the applicant in the same status she was in when she was discharged on 19 August 1994. 

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

RECOMMENDATION:

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

	a.  rescinding the ABCMR Proceedings dated 22 July 1998 (docket number AC97-11551) and 3 November 1999 (docket number AR1999032667), respectively; and

b.  terminating any effort to recoup disability severance payments from her and returning any monies already recovered from her.

BOARD VOTE:  

___amd _  ___jam _  ___alr __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________Ann M. Campbell_______
		        CHAIRPERSON

INDEX

CASE ID	AR2000034945	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
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.  128.08		
2.   136.03		
3.		
4.		
5.		
6.