MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR2000037055

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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:  That his discharge orders be corrected to authorize
him five annual payments of the Reserve Special Separation Pay (RSPP).

APPLICANT STATES:  That the paperwork he signed authorized him five payments of the RSSP.  The Defense Finance and Accounting Service (DFAS) paid him two payments but then they wanted the second one back.  He provides his RSSP earnings statement and his discharge orders as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records show:

He was born on 23 May 1949.  He enlisted in the U. S. Army Reserve (USAR) on    4 June 1968.  He had one short break in service and reenlisted in the USAR on       3 April 1976 in the rank of Staff Sergeant, E-6.  He was assigned to Company B,    1st Battalion, 416th Regiment, 2d Brigade, 104th Training Division, Walla Walla, WA from 1976 until his discharge.

The applicant’s Chronological Statement of Retirement Points dated 11 July 1994 shows that as of retirement year ending 3 April 1994 he had 21 years of qualifying service for retirement and 25 years, 4 months and 4 days of total service.

During retirement year ending 5 February 1995, the applicant earned 41 inactive duty points, 15 membership points and 5 active duty points.

In 1995, the applicant was counseled by his unit that he had 22 years of qualifying service for non-regular retired pay and that he must be separated.  The exact date of his counseling cannot be determined.  He dated the DA Form 4187, Personnel Action wherein he requested Reserve Component Transition Benefits 16 April 1995; however, the commander dated his recommendation of approval 4 February 1995.  His records contain two Addendum Ds to the DA Form 4187.  One is dated              6 February 1995 wherein he acknowledged he was being involuntarily separated for reasons other than unit inactivation, deactivation, reorganization or relocation on or after 5 October 1994.  He understood he would receive a lump sum RSSP payment. The other Addendum D is dated 16 April 1995 and in it he understood he would be authorized five annual payments of the RSSP.

Orders were published on 21 March 1995 transferring the applicant to the Retired Reserve effective 6 February 1995 for completing his maximum years of service (MYOS).  The additional instructions on his orders note his Selected Reserve Transition Program Type as “XJ.”  The applicant received RSSP in the amount of $1,276.51.

Around February 1996, the applicant received a second RSSP payment in the amount of $1,276.51.  On an unknown date, DFAS apparently notified him the second payment was in error and billed him for repayment.  

Army Regulation 140-10, effective 1 July 1990, prescribes policies, responsibilities and procedures to assign, remove, or transfer USAR soldiers.  Paragraph 7-1 provides that soldiers in the grade of E-6 would be removed from an active status and discharged or transferred to the Retired Reserve upon completing 25 years of service.  That provision became effective 1 July 1984.  Removal will be 30 days after completion of 25 years of service. 

On 23 October 1992, the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, established the Selected Reserve Transition Program (SRTP).

On 11 March 1993, implementation of the SRTP began.  All eligible soldiers with    20 or more qualifying years of service who were separated for unit inactivation, maximum years of service, or several other reasons were entitled to 5 annual payments of separation pay.

On 5 October 1994, the National Defense Authorization Act for Fiscal Year 1995, Public Law 103-337, modified the SRTP.  Soldiers involuntarily reassigned due to qualitative or selective retention board (QRB/SRB) action or for MYOS were entitled to only one separation payment.  (It was further amended on 1 October 1996 to provide that soldiers separated for these reasons were no longer eligible for the SRTP.)

Separation type codes were used to identify the category of soldiers authorized to receive RSSP.  Code XA identified an Army Reserve, Army National Guard or Individual Mobilization Augmentee (IMA) soldier who lost his or her unit position due to unit inactivation/reorganization/relocation or through QRB/SRB or MYOS prior to  5 October 1994 and was authorized 5 annual payments.  Code XJ identified an Army Reserve or Army National Guard or IMA soldier who was separated through QRB/SRB or MYOS after 5 October 1994 and was authorized one payment.

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

1.  The Board concludes that there is evidence of Government error since he was allowed to remain in an active status beyond the date he attained the maximum allowable service for an E-6.  However, the Board also concludes that he has not shown that he did not acquiesce, even if only passively, in his retention beyond the maximum allowable 25 years.

2.  The applicant contends that he completed an addendum that authorized him five annual payments of the RSSP.  The Board finds two different addenda in his records.  The correct one was dated February 1995, prior to his discharge, and showed that he was being involuntarily separated for reasons other than unit inactivation, deactivation, reorganization or relocation on or after 5 October 1994. This was correct because he was being separated for having completed his MYOS.  He understood he would receive a lump sum RSSP payment.  The incorrect addendum was dated April 1995, after he had already been separated.

3.  The applicant was a senior non-commissioned officer.  The Board finds it difficult to believe, without evidence, that the applicant was not aware that the maximum years of service he should have remained in an active status was 25 years, which he attained around January 1994.  This policy had been in effect since 1984.  If the unit did not realize he had 25 years of service at that time, he should have brought it to their attention.  Since he provides no evidence that he did so, the Board concludes that he at least passively acquiesced in continuing in an active status and drawing drill and annual training pay and earning retirement points after that period until his discharge.

4.  The applicant signed an addendum on 6 February 1995 acknowledging that he knew his RSSP would be a lump sum payment.  The second addendum was signed after he had already been discharged; therefore, it could not be valid.  He therefore should have known at the time DFAS sent him the second payment that he was only due one payment.  Since the applicant should have known at the time that he was not eligible to receive the second payment, if he is now charged with a debt for that second payment the Board concludes that the debt is valid.

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

__slp___  __lem___  __aao___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037055	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.