MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 March 2001                   
	DOCKET NUMBER:   AR2000050610

	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:

	Mr. Roger W. Able		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. William D. Powers		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:  In effect, that his Certificate of Release or Discharge from Active Duty, DD Form 214, be corrected to show he received $29,516,60 in Special Separation Benefit (SSB) pay.

APPLICANT STATES:  That his DD Form 214 shows he received an SSB payment of $41,438.52.  However, his SSB payment was finalized by the Defense Finance and Accounting Service (DFAS) at $29,516.60, of which he received only $13,203.57.  The VA is recouping the $41,438.52 instead of the $29,516.60 amount from his disability pay.

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

He enlisted in the Regular Army on 29 March 1977.  

On 15 July 1992, the applicant was released from active duty in the rank of Sergeant, E-5 after completing 15 years, 3 months and 17 days of creditable active service plus an additional 1 month and 3 days creditable service for pay under the fiscal year 1992 Enlisted Voluntary Early Transition Program.  His    DD Form 214 shows he was given an SSB payment of $41,438.52.

A Statement of Military Pay Account, DFAS-DE Form 0-641, dated 15 July 1992 shows that the applicant was entitled to $41,438.52 in SSB pay in addition to other entitlements for a total of $42,720.17 in entitlements.  His total deductions came to $29,516.60.  His total amount due was shown as $13,203.57 (less payments already received).

At the time, Title 10, U. S. Code, section 1174(h) provided that “a member who has received separation pay under this section…shall not be deprived, by reason of his receipt of such separation pay…of any disability compensation to which he is entitled under the law administered by the Department of Veterans Affairs, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay…received.”  The law was changed in 1996 to provide that “…there shall be deducted from that disability compensation an amount equal to the total amount of separation…received less the amount of Federal income tax withheld from such pay.”

Title 10, section 1174a, U.S. Code sets forth the authority for the Service Secretary concerned to carry out a special separation benefits program.  An eligible member of the armed forces may request separation under the program. Upon approval, the member shall be released from active duty or discharged and be entitled to separation pay equal to 15 percent of the product of the member’s years of active service and 12 times the monthly basic pay to which the member is entitled at the time of his release or discharge.

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  DFAS did not “finalize” the applicant’s SSB payment at $29,516.60.  DFAS calculated his SSB payment at $41,438.52.  His total deductions (income taxes and other deductions) were calculated at $29,516.60.  This left a net total entitlements due of $13,203.57 (less payments already received).  

3.  According to the law, the VA was required to deduct from his disability compensation an amount equal to the total amount of separation pay received.
There may be some tax implications in the applicant’s case because of the change in the law in 1996.  He should consult the VA or a tax expert to obtain more details on whether or not the change in law affects him.  

4.  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

__rwa___  __bjl___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050610	
SUFFIX		
RECON		
DATE BOARDED	20010308	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.	128.14	
3.		
4.		
5.		
6.