MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           11 July 2002                   
	DOCKET NUMBER:   AR2002067298

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Harry B. Oberg		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:  That he be paid back the severance pay that has been recouped from him.

APPLICANT STATES:  That although he was told he would be given severance pay if he agreed to transfer to the Inactive (sic) Ready Reserve (IRR), he was later told that he was paid severance pay in error.  That resulted in the collection of his severance pay, even though he consented to be assigned to the IRR as a condition for receiving the severance pay.

EVIDENCE OF RECORD:  The applicant's military records could not be located.  The following information was derived from documents supplied by the applicant, himself.

He enlisted in the Army Reserve Delayed Entry Program (DEP) on 19 July 1994, and in the Regular Army on 26 June 1995.  He was awarded the military occupational specialty of power generator equipment repairer, and was promoted to pay grade E-4.  He was honorably released from active duty on 8 February 2001 by reason of weight control failure.  He had 5 years, 7 months and 13 days of active service.  Both the applicant’s DD Form 214 and the orders discharging him stated that he was entitled to half involuntary separation pay.

On 26 December 2001, the Department of Defense Finance and Accounting Office (DFAS) notified the applicant that he was erroneously given separation pay because he did not have 6 years of active duty. 

Army Regulation 635-200, paragraph 1-36, states that it is mandatory to transfer soldiers to the IRR who are separated for failure to meet Army weight control standards.

Title 10, U.S. Code, section 1174, provides that a regular enlisted member of an armed force who is discharged involuntarily or as the result of the denial of the reenlistment of the member and who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay computed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant was not entitled to involuntary separation pay because he did not have 6 years of active duty.

2.  It would appear that the error was made when someone processing the applicant’s separation mistook his enlistment into the DEP as his enlistment into the Regular Army.  

3.  While an error was made, the only adverse affect on the applicant is the requirement for him to pay back his separation pay.  His assignment to the IRR is not an issue in this case.  Since the applicant was on his initial enlistment, his statutory 8-year military service obligation does not expire until 26 June 2003.  Therefore, by regulation he was required to be transferred to the IRR regardless of whether he received separation pay or not.

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

___jtm___  ___tsk___  ___hbo__  DENY APPLICATION

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

INDEX

CASE ID	AR2002067298	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020711	
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.	128.10	
2.		
3.		
4.		
5.		
6.