PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            25 September 2001
	DOCKET NUMBER:   AR2001052699

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Ronald E. Blakely		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 he be granted separation pay for his 12 plus years of service.

3.  The applicant states, in effect, that he was unjustly denied separation pay at the time of separation (31 March 2000).  He continues by stating that he was unfairly treated when he was not offered a compensation package because he had been selected for selective continuation after being twice non-selected for promotion to major.  His options as a United States Army Reserve (USAR) officer were to accept selective continuation for 3 years or elect to separate without a compensation package.  He continues by stating that there was no long term solution for promotion so he chose what he considered best for his family, given his age at the time.  He also states that he subsequently learned that Regular Army (RA) officers were given similar options, except that they received a compensation package and that the legislation was subsequently changed to give all officers a compensation package.

4.  The applicant’s military records show that he was commissioned as a USAR second lieutenant on 20 August 1987 and entered active duty on 23 November 1987 as a transportation corps officer.  He was promoted to the rank of captain on 1 June 1992.

5.  On 19 October 1999, The Adjutant General of the Army authored a letter to the applicant informing him that he had been twice nonselected for promotion to the rank of major by duly constituted Department of the Army Promotion Selection Boards; however, he had been recommended for selective continuation for a period of 3 years and the Secretary of the Army had approved the recommendation.  He was also informed that if he declined selective continuation, he would not be entitled to separation pay.

6.  On 30 November 1999, the applicant acknowledged his receipt of the notification of selective continuation and submitted his election to decline selective continuation with the understanding that he would not be authorized involuntary separation pay.

7.  Accordingly, the applicant was honorably released from active duty (REFRAD) on 31 March 2000 under the provisions of Army Regulation 600-8-24, paragraph 2-7, based on completion of required service.  He had served 12 years, 4 months and 8 days of total active service and was not authorized separation pay.

8.  A review of the applicant’s evaluation reports show that overall he was a Center-of-Mass officer who had completed his graduate education and the Combined Arms Staff 3 (CAS3) course.  He successfully completed command time and there is no derogatory information contained in his official records.
9.  In the processing of this case a staff advisory opinion was obtained from the Total Army Personnel Command (PERSCOM) which opined that the applicant was twice non-selected for promotion to the rank of major during Fiscal Year (FY) 1999, the first year that selective continuation boards was authorized for captains.  Prior to FY99, captains who became twice non-selected for promotion were involuntarily separated and were authorized to receive separation pay.  With the initiative of selective continuation boards, the applicant was selected for continuation when the applicable laws provided that other than RA officers (OTRA) who declined continuation on active duty were considered voluntary separations and thus were not entitled to separation pay.  However, RA officers could decline selective continuation and receive separation pay.  Congress addressed this inconsistency by modifying the law through the FY01 National Defense Authorization Act (NDAA) to apply the same rules regarding separation benefits to both RA and OTRA officers.  Accordingly, captains who declined selective continuation the following year after the applicant’s separation were authorized separation pay.

10.  The advisory opinion was provided to the applicant for comment; however, to date no response has been received by the Board.

11.  Information received from the PERSCOM promotions branch indicates that after the results of the FY99 SELCON for captains was released, 104 officers accepted the offer of SELCON and 158 officers declined.

12.  MILPER Message Number 99-068 announced the zones of consideration for the FY99 Major, Army Competitive Category Promotion Selection Board.  The message provided the zones of consideration for captains who were eligible for consideration for promotion to the rank of major.  It also provided specific instructions regarding what officers should do to prepare their records for review by the selection board and their right to submit correspondence to the president of the board.  It also informed them that the FY99 NDAA incorporated new changes to the law which provides that an officer twice nonselected for promotion to the next higher grade is not entitled to separation pay if the nonselections resulted from an officer who requested in writing not to be selected for promotion or who otherwise directly caused nonselection through written communication to the board.

13.  MILPER Message Number 00-078 announced the zones of consideration for the FY00 Major, Army Competitive Category Promotion Selection Board.  It includes the same information as MILPER Message Number 99-068 and included a notification paragraph which informed the eligible officers that a Selective Continuation (SELCON) Board might be conducted to allow captains not selected for promotion to remain on active duty.

14.  Title 10, United States Code, section 1174, provides the authorization for separation pay to officers who are involuntarily separated from the service.  The law in effect at the time provided in pertinent part, that RA officers who declined continuation on active duty were entitled to receive separation pay; however, OTRA officers who declined selective continuation were deemed to be voluntarily separating and were not entitled to separation pay.  Effective 30 October 2000, section 508 of the FY01 NDAA modified section 1174 to allow OTRA officers to decline selective continuation and receive separation pay for involuntary separation.

15.  Nondisability Separation Pay authority is provided for in Title 10, United States Code, Section 580.  It provides, in pertinent part, that the purpose of nondisabilty separation pay is to provide a lump-sum payment to Regular and Reserve officers involuntarily discharged or released from active duty short of retirement eligibility, either because of failure of selection for promotion, substandard performance of duty, misconduct, or moral or professional dereliction, or because the retention of such officers is not consistent with the interests of national security.  The separation pay is a contingency payment for an officer who is career committed but to whom a full military career may be denied.  It is designed to encourage him to pursue his service ambition, knowing that if he is denied a full career under the competitive system, he can count on an adequate readjustment pay to ease his reentry into civilian life. 

CONCLUSIONS:

1.  While the Board recognizes that the applicant was properly separated in accordance with the applicable laws and regulations in effect at the time and that he was properly denied separation pay based on his decision to accept separation without the benefit of separation pay, in lieu of accepting selective continuation on active duty, there appears to an issue of equity involved in the applicant’s case and possibly others in similar circumstances.

2.  The Board finds that had the decision not to implement selective continuation occurred, there would be no issue in this case because the applicant would not have had to decline selective continuation for a 3-year period that would not take him to retirement eligibility nor would it have any guarantees that he would be selected for promotion.

3.  The Board also notes that the Department recognized the inconsistency of the law where it afforded RA officers separation pay when they declined selective continuation and yet denied OTRA officers the same benefits.  Accordingly, the law was amended 7 months after the applicant separated and amounted to a     1-year gap of officers who were denied involuntary separation pay when other officers who separated both before and after them had received separation pay for their service to their country.  It is apparent to the Board that the Department attempted to rectify the injustice but simply failed to address the issue of those who had been treated unfairly by not requesting the amendment of law incorporate those individuals concerned.

4.  The Board recognizes that in previous years, SELCON Boards were normally held for those grades in which officers had sufficient service to meet retirement eligibility if SELCON was offered and served.  However, because the officers concerned were at the mid-point in their careers, SELCON could not take them to retirement eligibility and required some very difficult decisions by the officers affected.  It appears to the Board that the gap in coverage between when the law was changed to afford OTRA officers separation pay and when the affected officers separated was unintentional; therefore, action should be taken to ensure that the affected officers are treated as their fellow officers were treated both prior to and subsequent to their separation.

5.  Accordingly, the Board finds that as a matter of equity and justice, the applicant should be granted involuntary separation pay as an exception to the law and policies in effect at the time.

6.  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 that the individual concerned was involuntarily separated and was entitled, as an exception to policy, to involuntary separation pay due to his being twice non-selected for promotion. 

BOARD VOTE:  

___le ___  ___js____  ___reb __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2001052699	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  338	136.000/separation pay	
2.  		
3.		
4.		
5.		
6.