PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            5 March 2002
	DOCKET NUMBER:   AR2001058096

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas B. Redfern		Member	
	Mr. Donald P. Hupman		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 paid disability severance pay “for total time served” of 5 years, 10 months and 10 days as authorized in a letter dated 2 October 1984.

3.  The applicant states, as summarized, that, when he was separated with severance pay from the New Jersey Army National Guard, the finance office at Fort Dix, New Jersey, would not pay him severance pay based on his total years of service.  In an addendum to his application, he states that the Army only authorized payment based on 4 years, 9 months and 10 days of active duty and the Fort Dix paymaster would only pay him based on 1 year, 3 months and 8 days of active duty, even though the applicant stated that he served for 5 years, 10 months and 10 days.

4.  In support of his application, the applicant submitted letters, dated 22 November 1999 and 11 October 2000, from him to the Army Reserve Personnel Center, a DD Form 214 MC (Report of Separation from Active Duty) with an effective date of 13 August 1974 issued by the United States Marine Corps (USMC), a DD Form 214 (Certificate of Release or Discharge from Active Duty), with a separation date of 30 October 1984 issued by the Army, a copy of U.S. Army Military Personnel Center Letter Orders 0180-25, dated 2 October 1984, discharging the applicant from the Army National Guard of the United States effective 30 October 1984 with entitlement to disability severance pay; a 26 January 2000 handwritten note by the applicant; and an 8 March 2000 letter from the Client Information and Quality Assurance Branch of the Army Review Boards Agency.

5.  In the letter, dated 22 November 1999, the applicant contends that he had been advised by his attorney that there was an error in the computation of the applicant’s disability severance pay by the Army in 1984.  The applicant states that he was only paid by the finance office at Fort Dix, New Jersey, for 4 years, 9 months and 10 days of service although he “was classified as a Sgt. E5 with over 6 years of service.”  He contends that his total active duty should have been 6 years, 5 months and 11 days according to his NGB [National Guard Bureau] Form 22 (Report of Separation and Record of Service) and DD Form 214.  The applicant did not provide a copy of his NGB Form 22 to the Army Board for Correction of Military Records (ABCMR); however, the staff of the ABCMR obtained a copy of the applicant’s the New Jersey Army National Guard (ARNG) records from the State Archives of New Jersey.  These records contained both DD Forms 214 MC issued by the USMC, the DD Form 214 issued by the Army and the NGB Form 22 issued by the New Jersey ARNG.

6.  In the letter, dated 11 October 2000, the applicant contends he received a letter which stated that he would receive compensation for his total time served on active duty and that this service was 6 years, 5 months and 11 days.  This letter was not included with information provided to the ABCMR.  The applicant further wrote that the paymaster at Fort Dix, New Jersey, advised the applicant that since he had received disability severance pay for his shoulder injury from the USMC, his USMC active duty did not count toward this current award of severance pay by the Army.  As a result, the applicant contends that he was only paid $2007.60 based on 1 year, 3 months and 8 days of active duty service.

7.  The applicant’s military records show that he served in the USMC in an enlisted status from 4 November 1969 through 13 August 1974 at which time he was honorably discharged in the rank of sergeant.  

8.  After his separation from the Marine Corps, the applicant enlisted in the New Jersey ARNG effective 30 March 1983 and served through 22 July 1983 in an inactive duty training (IDT) status.  Effective 23 July 1983, he was placed in an Army active duty status.  The applicant was separated from active duty and returned to an IDT status in the New Jersey ARNG on 30 October 1984 by reason of physical disability with a 10 percent rating and with entitlement to disability severance pay in the amount of $2007.60.  Concurrently, the New Jersey ARNG separated the applicant effective 30 October 1984 as medically unfit for retention as evidenced on his NGB Form 22 (Report of Separation and Record of Service) and State of New Jersey Orders 209-5, dated 30 October 1985.

9.  The records obtained by the ABCMR contain a DD Form 214 MC which shows the applicant enlisted in the USMC effective 4 November 1969 and was separated effective 7 December 1971.  This DD Form 214 MC shows his net service for this DD Form 214 MC as 2 years, 1 month and 4 days.  This discharge document also shows that he served of 1 month and 1 day of other service.

10.  The applicant provided a copy of a second DD Form 214 MC (with an effective date of 13 August 1974) which shows that he reentered active duty in the USMC effective 8 December 1971 and was honorably discharged on 13 August 1974.  This separation document shows that he served net active service of 2 years, 8 months and 5 days during the period covered by this DD Form 214 MC.  Item 18c (Total Active Service) of this DD Form 214 MC shows that, at the time of his separation from the USMC on 13 August 1974, he had completed 4 years, 9 months and 9 days of active service.  This DD Form 214 MC also shows in item 18d (Prior Inactive Service) the entry 1 month and 1 day.  

11.  The DD Form 214 MC (with a separation date of 13 August 1974) incorrectly shows in item 18e (Total Service for Pay) the entry 5 years, 10 months and 10 days.  The DD Form 214 shows that Total Service for Pay is the sum of Total Active Service and Prior Inactive Service.  Calculations reveal that the sum of 4 years, 9 months and 9 days of active service and 1 month and 1 day of prior inactive service equals 4 years, 10 months and 10 days, not 5 years, 10 months and 10 days as shown in item 18e.

12.  Item 24 (Disability Severance Pay) on the DD Form 214 MC (with an effective date of 13 August 1974) shows an “X” in the block labeled “YES” indicating the applicant received disability severance pay and also shows the entry, $4,863.00,” indicating the amount of disability severance pay received upon separation from the USMC. 

13.  U.S. Army Military Personnel Center (MILPERCEN) Letter Orders 0180-25, dated 2 October 1984, discharged the applicant from the ARNG of the United States effective 30 October 1984 with disability severance pay, but did not terminate his individual status as a member of the New Jersey ARNG.  Additional instructions on those orders state:  “You are authorized disability severance pay in the grade of SGT [sergeant/pay grade E-5] based on 4 years, 9 months and 10 days of service computed under 10 USC 1208 [Section 1208, Title 10, United States Code].”  These instructions further stated that the percentage of disability was 10 percent.

14.  The applicant’s DD Form 214 issued by the Army with a separation date of 30 October 1984, shows in item 12c (Net Active Service This Period) that he completed 1 year, 3 months and 8 days of active service during the period covered by this DD Form 214.  

15.  The applicant’s DD Form 214 (with a separation date of 30 October 1984), shows in item 12d (Total Prior Active Service) that he completed 4 years, 9 months and 10 days of active service prior to the period covered by this DD Form 214.  However, the DD Form 214 MC (with an effective date of 13 August 1974) shows that the applicant had only completed 4 years, 9 months and 9 days of active duty in the USMC.  

16.  The applicant’s DD Form 214 (with an effective date of 30 October 1984) shows that he received “DISABILITY/READJUSTMENT PAY” in the amount of $2007.60 at the time of his separation from the Army.

17.  The applicant’s NGB Form 22 shows in item 10(a) (Net Service This Period) that he completed 1 year, 7 months, and 1 day of ARNG service from 30 March 1983 through 30 October 1984.  This document also shows in item 10(b) (Prior Reserve Component Service) 1 month and 1 day.  Item 10(c) (Prior Active Federal Service) shows the entry 4 years, 9 months and 9 days.  Item 10(d) (Total Service for Pay) shows the entry 6 years, 5 months and 11 days.

18.  The applicant’s NGB Form 22 shows that the applicant served 1 year, 7 months and 1 day of net service from 30 March 1983 through 30 October 1984.
However, the period from 30 March 1983 through 22 July 1983 was in an IDT status in the New Jersey ARNG and, as such, is 3 months and 23 days of reserve service, not active duty.  The period of service from 23 July 1983 through 30 October 1984 is 1 year, 3 months and 8 days of active Federal service or active duty.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the disposition of soldiers who are unfit because of physical disability.  This regulation provides that a soldier may be separated with severance pay if his or her disability is rated at less than 30 percent; if he or she has less than 20 years of service as defined in 10 USC 1208 [RC soldiers not on extended AD use 10 USC 12733 for computations]; and if his or her disability occurred in the line of duty and is the proximate result of performing active duty or IDT.

20.  Section 1208, Title 10, United States Code, in effect at the time of the applicant’s separation from the Army, states essentially that a member of the armed forces who is not a member of the regular component shall be credited with the number of years that would count if he were computing his years of service under Section 1333 of Title 10.  Computation of years of service under Section 1333 requires adding the soldier’s days of active duty, his or her days of service under selected sections of Title 32, and crediting the soldier with one day for each point credited under Clause (B) or (C) of Section 1332(a)(2), but not more than 60 in any year.  The sum of this addition is then divided by 360.

21.  Section 1208, Title 10, United States Code, currently in effect, provides for the computation of service for retirement or separation for disability.  This provision of law states that a member of the armed forces who is not a member of the regular component shall be credited, for the purposes of this chapter, with the number of years of service that he would count if he were computing his years of service under Section 12733 of Title 10. 

22.  Section 12733, Title 10, United States Code, currently in effect, provides that for the purpose of computing retired pay under this chapter, the person’s years of service and any fraction of such a year are computed by dividing 360 into the sum of the following:  1) The person’s days of active service;  2) The person’s days of full-time service under sections 316, 502, 503, 504, and 505, of Title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the secretary concerned;  3) One day for each point credited to the person under clause (B), (C), or (D) of section 12732(a)(2) of this title but not more than 60 days in any one year of service before the year of service that includes September 23, 1996, and not more than 75 days in any subsequent year of service;  4) 50 days for each year before July 1, 1949, and proportionately for each fraction of a year, of service (other than active service) in a reserve component of an armed force, in the Army or the Air Force without component, or in any other category covered by section 12732(a)(1) of this title, except regular component.

CONCLUSIONS:

1.  Orders show the applicant was rated for physical disability by the Army and was separated by the Army from active duty with entitlement to disability severance pay in the amount of $2007.60 effective 30 October 1984 based on 4 years, 9 months and 10 days of service computed under 10 USC 1208.

2.  The Board considered the applicant’s contentions that he was not paid the correct amount of disability severance pay at the time of his separation from the Army on 30 October 1984.  The Board noted that the applicant specifically asserted that the paymaster at Fort Dix authorized payment of disability severance pay based only on 1 year, 3 months and 8 days of active service instead of 4 years, 9 months and 10 days specified in MILPERCEN Orders 
0180-25, dated 2 October 1984.  However, the applicant has provided no proof that the amount of his disability severance pay from the Army was in error and he did not provide to the ABCMR the document which he contends authorized disability severance pay based on 6 years, 5 months and 11 days of service. 

3.  The Board reviewed the law governing computation of service for disability purposes.  The Board concluded that Section 1331 of Title 10 in effect at the time of the applicant’s separation from the Army and Section 12733 of Title 10, now in effect, are essentially the same.  

4.  Based on the law, the Board determined that all service performed by the applicant must be correctly displayed on official military documents and/or orders to properly determine the service which may be used as a basis for calculating disability severance pay.  

5.  The Board considered the applicant’s contention that he is entitled to disability severance pay from the Army based on 5 years, 10 months and 10 days of service.  The Board noted that the DD Form 214 MC issued by the USMC shows the applicant’s total service for pay (item 18c) is 5 years, 10 months and 10 days. However, as demonstrated previously in these Proceedings, the calculations used to arrive at 5 years, 10 months and 10 days in item 18c are in error by approximately 1 year of service.  Therefore, 5 years, 10 months and 10 days is not a valid amount of service upon which to base calculation of disability severance pay in this case unless there is proof that the Department of the Navy has corrected or has otherwise verified the figures currently shown in items 18c, 18d, and 18e shown on the applicant’s DD Form 214 MC.

6.  The Board reviewed MILPERCEN Letter Orders 0180-25, dated 2 October 1984, and noted that these orders authorized disability severance pay to the applicant in the grade of sergeant/pay grade E-5 based on 4 years, 9 months and 10 days of service computed under 10 USC 1208 at the 10 per cent rate.  The Board noted that 4 years, 9 months and 10 days coincides with the entry in item 12d (Prior Active Service) on the DD Form 214 issued by the Army on 30 October 1984.  The Board also noted that this entry showing prior active duty on the Army’s DD Form 214 is not consistent with 4 years, 9 months and 9 days of active duty shown on the DD Form 214 MC issued by the USMC.  However, based on the date of entry and the date of discharge shown on the DD Form 214 MC (with an effective date of 13 August 1974), calculations reveal that item 18(a) on this DD Form 214 MC is in error by one day and should read 2 years, 8 months and 6 days instead of 2 years, 8 months and 5 days.  As a result, the Army determination that the applicant completed 4 years, 9 months and 10 days of prior active service in the USMC is correct and item 12d (Total Prior Active Service) of the DD Form 214 (with an effective date of 30 October 1984) issued by the Army is correct.

7.  The Board also noted that the DD Form 214 issued to the applicant by the Army on 30 October 1984 credited him with 1 year, 3 months and 8 days of active duty service.  It is apparent to the Board that this period of active duty service was not included in the 4 years, 9 months and 10 days of service shown on U.S. Army Military Personnel Center Letter Orders 0180-25, dated 2 October 1984.

8.  In view of the foregoing, the Board concluded:

	a.  that 5 years 10 months and 10 days of service is not the correct basis for computation of the applicant’s disability severance pay;

	b.  that, based on evidence of record, 4 years, 9 months and 10 days is the correct amount of active service performed by the applicant as a member of the USMC; therefore, it is also the correct amount of prior service as shown on the applicant’s DD Form 214 issued by the Army with an effective date of 30 October 1984;

	c.  that the 1 year, 3 months and 8 days of Army active duty service completed between 23 July 1983 and 30 October 1984 and shown on the applicant’s DD Form 214 (with an effective date of 30 October 1984) issued by the Army are not included in the total active service used a basis for calculation of the applicant’s disability severance pay;

	d.  that the applicant’s reserve service consisting of 1 month and 1 day as a member of the USMC and 3 months and 23 days as a member of the New Jersey ARNG are correctly shown in item 12e (Total Prior Inactive Service) on the applicant’s DD Form 214 (with an effective date of 30 October 1984) issued by the Army.

9.  In view of the foregoing, the Board also concluded:

	a.  that the disability severance pay authorized by the Army to be paid to the applicant at the time of his separation should have been calculated based on all of the applicant’s service as prescribed by “10 USC 1208”; 

	b.  that the service used as a basis for calculation of the applicant’s disability severance pay in October 1984 should be recomputed based on 10 USC 1208 in effect on 30 October 1984 and based on all of the applicant’s service shown on his DD Form 214 (with an effective date of 30 October 1984) issued by the Army;

	c.  that, in the event the applicant is entitled to any additional service based on recomputation under 10 USC 1208, then his disability severance pay should also be recalculated; and 

	d.  that, in the event he is entitled to any disability severance pay in addition to the $2007.60 already paid to him by the Army, then he should be paid the additional disability severance pay to which he is entitled.

10.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That the Physical Disability Agency recompute the service of the individual concerned under “10 USC 1208”, in effect at the time of his separation from the Army on 30 October 1984, for disability severance pay purposes. 

2.  That the Physical Disability Agency use the DD Form 214 (with an effective date of 30 October 1984) as the military record which correctly shows the total amount of active and reserve military service performed by the individual concerned.

3.  That, if the Physical Disability Agency determines the recomputed service under 10 USC 1208 is different from the service (4 years, 9 months and 10 days) shown on MILPERCEN Order 0180-25, dated 2 October 1984, then the Physical Disability Agency publish appropriate orders to amend the service used as a basis for recalculation of his disability severance pay.

4.  That, upon completion of the actions in paragraphs 1 through 3, above, the Physical Disability Agency determine, in conjunction with the Defense Finance and Accounting Service, the amount of disability severance pay to which the individual concerned was entitled at the time of his separation from the Army on 30 October 1984.

5.  That, in the event the individual concerned was entitled to disability severance pay in an amount greater than $2007.60, at the time of his separation from the from the Army on 30 October 1984, then the Defense Finance and Accounting Service pay the individual concerned the difference due to him.

6.  In the event that the applicant received the correct amount of disability severance pay at the time of his separation from the Army on 30 October 1984, then the Defense Finance and Accounting Service so notify him.

7.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__FNE__  __TBR__  __DPH___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Mr. Fred N. Eichorn___
		        CHAIRPERSON

INDEX

CASE ID	AR2001058096	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020305	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	128.0800.0000	
2.		
3.		
4.		
5.		
6.