PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            20 March 2001
	DOCKET NUMBER:   AR2000048640

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. William D. Powers		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 full amount of his Special Separation Benefit (SSB) incentive pay he was granted be reinstated and that he be provided any underpayment due as a result. 

3.  The applicant states, in effect, that he was separated from active duty and was granted a time in service waiver by Department of the Army (DA) in order to meet the terms of the SSB program.  When paying his 1998 tax liability he discovered SSB payment errors and reported them to the Defense Finance and Accounting Service (DFAS) office.  He submitted a packet to the DFAS office and was notified that in fact the debt was in error and that he was due an additional sum and that he would receive a payment in a time specified.  

4.  The applicant waited for the time specified by DFAS to pass and again contacted them to check on the status of the payment.  He was then informed that his case had undergone further review and that the debt had been reinstated because his time in service waiver contradicted the time in service requirement established in the Department of Defense (DOD) regulation for payment of SSB.  He then contacted his old unit and his Congressional delegation to gain relief and was advised that the appropriate method to deal with this issue was to apply to this Board.  

5.  The applicant contends that it is unjust to hold him accountable and responsible for errors that occurred and of which he had no knowledge or control. He claims to have followed all the procedures in submitting his request for SSB and processed his separation request through his chain of command.  He indicates that he served faithfully and did all that was ever asked of him and more, which includes his service overseas as part of the United Nations contingency forces in Somalia.  His separation was reviewed by not only his local unit personnel officials but also by personnel officials at Fort Bragg, North Carolina and he was cleared for separation by DA.  If the personnel officials who cleared his separation with SSB discovered no errors, it is unreasonable to expect that he could have.  Therefore, he contends his debt of $22,213.12 should be relieved and the original underpayment of $8,557.65 should be reinstated and paid to him.  

6.  The applicant’s military records show that on 9 May 1992 he was appointed a second lieutenant (2LT) in the United States Army Reserve (USAR) and on 
4 October 1994, he entered active duty in the Medical Service Corps (MSC).  

7.  The applicant’s Officer Record Brief (ORB) shows that he was promoted to the rank of captain (CPT) on 1 January 1997 and that he served overseas in Somalia from April through August 1993.  It also indicates that during his active duty tenure he earned the Meritorious Service Medal and two Army Commendation Medals.  His final assignment on active duty was at Womack Army Hospital, Fort Bragg, North Carolina. 

8.  The applicant applied through channels for release from active duty (REFRAD) on 31 August 1998.  On 4 March 1998, his request was approved by the Army Personnel Command (PERSCOM).  In their approval message, PERSCOM directed that the applicant’s separation include the statement that the officer was being separated under the provisions of the Voluntary Separation Incentive Program (VSIP) with a SSB.  

9.  The PERSCOM approval message also directed that item 18 of the separation document issued to the applicant include a SSB payment amount.  In addition, it directed that the narrative reason for separation be listed as “Early Release Program-SSB.”  It finally directed that the separation transition point ensure that the document transmitting the applicant’s records clearly indicate that he had been approved for separation under the Fiscal Year 1998 (FY98) VSIP with a SSB.

10.  On 7 May 1998, Orders Number 137-0320 was published by the XVIII Airborne Corps, Fort Bragg, North Carolina, which authorized the applicant’s assignment to the transition point for separation processing.  This order confirmed that the applicant was approved for separation under the provisions of the VSIP with a SSB payment.  

11.  The Department of Defense (DD) Form 214 (Certificate of Release or Discharge from Active Duty) on file shows that on 31 August 1998, the applicant was honorably REFRAD, in the rank of CPT, after completing a total of 5 years, 10 months, and 27 days of active military service.

12.  The DD Form 214, which was authenticated by both the applicant and the Noncommissioned Officer in Charge (NCOIC) of the Transition Services Center, verified that the reason for the applicant’s separation was “Early Release Program-Special Separation Incentive” and block 18 contained an entry that confirmed he was entitled to an SSB payment of $32, 539.50.  

13.  In April 1999, DFAS billed the applicant for a debt payment due as a result of his being erroneously paid a SSB.  In May 1999, the applicant contacted DFAS and requested a review of his debt.  

14.  On 11 September 1999, DFAS notified the applicant, by letter, that his military pay account had been reexamined and that his debt had been erroneous and that the cancellation of the debt was due to the posting of his SSB pay to his military pay account.  The letter further indicated that he was due further pay and he should allow 30 to 45 days for payment to be processed.  

15.  On 15 December 1999, DFAS advised the applicant, by letter, that upon further review and in accordance with the Department of Defense Financial Management Regulation (DODFMR), paragraph 350701 A2, he must have served on active duty for more than six years to receive SSB and his DD Form 214 showed that he only served on active duty for 5 years, 10 months, and 
27 days.  

16.  DFAS further advised the applicant that they had contacted the responsible PERSCOM official who indicated that waivers were never approved for SSB entitlement on members who served less than six years, which made it appear the information on his separation approval message and DD Form 214 was incorrect.  Finally, they advised the applicant that for these reasons his debt could not be cancelled and they advised him to apply to this Board for relief, but to establish a debt repayment plan pending its processing.  

17.  Army policy and the DODFMR, based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntarily separated members.  The SSB was one of the monetary benefits associated with this incentive program.  

18.  Paragraph 3507 of the DODFMR governs the payment of SSB.  Paragraph 35701 contains guidance on SSB entitlement and states, in pertinent part, that a member who separates voluntarily from a military service before 1 October 1999, could under conditions prescribed by the Secretary concerned, elect to receive a SSB.  

19.  Paragraph 350701 A2 contains the pertinent time in service requirement for SSB.  It states, in pertinent part, that in order to receive SSB pay a member must have served more than six years on active duty, full-time National Guard duty, or any combination thereof.

20.  Paragraph 350701 E specifies that the Secretary of the military service concerned, or designee, must approve the member’s application for voluntary separation before the member may receive payment.  Finally, paragraph 
350702 provides the following computation formula to use in arriving at the SSB payment:  multiply rate of monthly basic pay on the date of separation times 
12 times years of active service times 0.15.  

CONCLUSIONS:

1.  By law and regulation, a member must serve more than six years of active duty in order to be eligible for entitlement to a SSB.  Therefore, the Board finds the DFAS ruling that the applicant was not eligible to receive SSB is correct. 

2.  However, the evidence of record makes clear that the applicant submitted his request for separation, under the provisions of the VSIP with a SSB, through the proper channels, that he made no false claim as to the time in service he had completed, and that his separation request was reviewed and approved by personnel officials at every level up to and including DA PERSCOM.

3.  In the opinion of the Board, personnel officials at every level had an obligation to conduct a thorough review of the applicant’s service records to determine whether or not he met the prerequisites for separation with a SSB, prior to their recommending approval and forwarding his request for separation.  

4.  In addition, notwithstanding their assertion to the contrary, the DA PERSCOM approval authority, who had full access to his Official Military Personnel File (OMPF) during their review, had the responsibility to confirm the applicant’s eligibility prior to approving his request for separation under the VSIP and directing his separation with a SSB entitlement. 

5.  Further, the Board finds it unreasonable to place the burden for determining his own eligibility and entitlement to SSB on the applicant.  The improper authorization and erroneous payment of SSB was the direct result of the failure of the responsible personnel officials to verify the applicant’s entitlement to SSB.

6.  Additionally, the Board finds it illogical to presume that had the applicant been properly advised and known of the requirements for receiving a SSB, he would have requested a separation date that was just a little over a month short of the time in service prerequisites for entitlement, when he could have easily stayed on active duty an additional two months to qualify.  

7.  The Board finally concludes that the fatal errors in the processing of the applicant’s request for separation resulted in the erroneous SSB payment and subsequent debt incurred by the applicant, through no fault of his own, and this injustice to the applicant should be rectified at this time.  

8.  Therefore, the Board finds that it would be appropriate, as an exception to policy, to grant the applicant entitlement to SSB, as if he had completed the more than six years time in service necessary to qualify. 

9.  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 showing the individual concerned is entitled to full SSB pay, as an exception to policy, as if he had completed the more than six years time in service prerequisite necessary to be qualified and by providing him all SSB pay and allowances due as a result.  

BOARD VOTE:  

___fe ___  ___rjw __  __wdp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000048640	
SUFFIX		
RECON		
DATE BOARDED	2001/03/20	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1998/08/31	
DISCHARGE AUTHORITY	AR 600-8-24	
DISCHARGE REASON	Early Release Program-SSB	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  283	128.0000	
2.		
3.		
4.		
5.		
6.