MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 AUGUST 2001
	DOCKET NUMBER:   AR2001057389

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Linda D. Simmons		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, the separation pay that he should have received in 1992, or barring that, his record be corrected to show that he did not receive that separation pay.  

APPLICANT STATES:  That he did not receive separation pay.  The check in the amount of $9,079.02 was mailed to his address in North Carolina; however, he was discharged in Germany.  He states that he contacted the Defense Finance and Accounting Service (DFAS) at Indianapolis and no vouchers were found to indicate payment other than his final military pay.  The 1991 tax record (W-2) shows only regular pay.  No tax records were found after 1991.  The VA is collecting money to recoup the amount of separation pay indicated on the         DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty).

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

The applicant entered on active duty on 26 August 1980 and served on continuous active duty until his discharge.  

The applicant was assigned to a brigade of the 3d Infantry Division in Germany prior to his discharge.  On 8 November 1990 he received a bar to reenlistment.  Orders published by the 258th Personnel Service Center on 16 September 1991 authorized early return of his wife and daughter to the United States with an availability date of 30 September 1991.

On 24 September 1991 the applicant’s request for overseas separation was approved.  A Medical Department Activity memorandum shows that the applicant was retained beyond his discharge date (ETS) until completion of medical evaluation proceedings.

On 6 December 1991 orders were published discharging the applicant from active duty, not by reason of physical disability.  That order shows that he was entitled to one-half of separation pay.  The applicant’s DD Form 214 shows that he was discharged on 7 December 1991.  It does not show award of any separation pay.  His DD Form 214 shows that he was separated in Germany.

The applicant’s leave and earning statement (LES) for the period                         1-7 December 1991 does not show that he was paid separation pay.    

In response to his request, on 20 April 2000 the VA forwarded the applicant a copy of his 24 March 1994 DD Form 215.  That form which corrected his             7 December 1991 DD Form 214 shows that he was awarded separation pay in the amount of $9,264.37.  In July 2000 the VA informed the applicant that they have been withholding his compensation benefits based on the provision of the law that provides for recoupment of his separation pay because of his award of disability compensation. 

On 16 April 2000 the DFAS at Denver informed the applicant that a review of his LES indicated that he was paid separation pay in March 1992 and that a check in the amount of $9,079.02 was mailed to his address in North Carolina.  The DFAS also informed him that there were no longer any records available to verify any information regarding the check.  The DFAS included a copy of a LES dated in March 1992 that shows a separation pay of $9079.02.  That LES shows the applicant’s mailing address in North Carolina, and includes the statement that the prior year W-2 be adjusted to include the separation pay and the federal tax withheld. 

In a note that he made on a copy of that notification the applicant requested that the information provided be “checked out.”  He stated that he did not leave Germany until 14 January 1994 and had not been back to North Carolina since August 1989, so he could not have cashed a check that he didn’t receive.  He stated that he contacted his family in North Carolina and they had no idea about the check.

On 25 April 2001 the DFAS at Denver informed him that it had no records available to verify payments made by the DFAS Indianapolis office, and that there might not be any records concerning the check that was issued in 1992.  The DFAS informed him that he could apply to this Board for relief.

A 1991 W-2 reissued on 9 June 2000 shows the wages and taxes withheld for that year.  It does not reflect the separation pay that he received.

A copy of a machine print out purportedly shows wages and taxes reflected on a 1991 1040 form.  

The applicant’s W-2 form for 1992 is not available.

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 applicant’s orders show that he was authorized half separation pay, and a check for $9, 079.32 was mailed to him at his home address in North Carolina.  He might well have not been at the address in March 1992; however, his wife and daughter returned to the United States sometime in September or October    of 1991, and they might well have been at that address.  Either the applicant or his wife could have received and cashed the check.  However, this is speculation and there is no evidence to support this. 

2.  The applicant’s 1992 W-2 is not available, and the 1991 W-2 may or may not be the only W-2 issued for the 1991 tax year.  The applicant’s March 1992 voucher indicates that his 1991 W-2 would be adjusted.  It is conceivable that a corrected copy or an adjusted W-2 form was issued for the 1991 tax year.  The Board notes that W-2 forms for government employees are normally mailed at the end of January.  Thus, the applicant’s separation pay would not have been recorded on his original W-2 form.    

3.  There is no evidence one way or another to show whether or not he or anyone in his family received and/or cashed the check.  Nonetheless, it is somewhat inconceivable that a soldier authorized separation pay upon his discharge would not have made some inquiry about that pay.  Despite his contentions, he has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  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 that requirement.

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

__RVO__  __CJP __  __LDS___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057389	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010830	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.	283	
3.		
4.		
5.		
6.