PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:             23 October 2003                  
	DOCKET NUMBER:     AR2003085973

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston 		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 granted separation pay.

3.  The applicant states, in effect, that a change in the Fiscal Year 2001 National Defense Authorization Act (NDAA) now entitles him to separation pay.  In support of his application, he submits a supporting memorandum from the Chief, Personnel Service Support Division (PSSD), U.S. Army Total Army Personnel Command (PERSCOM).  

4.  The applicant’s military records show that he was commissioned as second lieutenant in the United States Army Reserve (USAR) and entered active in that rank on 5 March 1989.  He was promoted to the rank of captain (CPT) on 1 June 1993.  

5.  On 7 October 2000, the applicant was honorably released from active duty (REFRAD) under the provisions of paragraph 2-7, Army Regulation 600-8-24, by reason of completion of required active service.  At the time of his separation he had completed 11 years, 7 months, and 3 days of active military service and he held the rank of CPT. 

6.  The supporting memorandum from the PERSCOM PSSD Chief indicated, in effect, that a change in the law allowed officers in the applicant’s situation to receive separation pay.  In this memorandum, the applicant was advised to apply to this Board for relief.  

7.  In connection with the processing of this case, and advisory opinion was obtained from the PERSCOM Chief, Officer Retirements and Separations Branch.  This official opined that the applicant as an Other Than Regular Army Captain (OTRA) CPT was twice non-selected for promotion to the rank of major and he was offered and declined Selective Continuation (SELCON).  It also indicated that in previous years, officers in similar situations were not authorized separation pay.  However, the Fiscal Year 2001 NDAA modified the law concerning separation pay.  As a result the Assistant Secretary of the Army (Manpower and Reserve Affairs) and the Army Board for Correction of Military Records (ABCMR) determined that CPTs twice non-selected for promotion as a result of the Fiscal Year 2000, Army Major Army Competitive Category Promotion Selection Board could apply to the ABCMR for relief, and this PERSCOM official recommended that the applicant’s request for separation pay be granted.  On 25 August 2003, the advisory opinion was provided to the applicant for comment; however, to date, he has failed to respond.  

8.  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 provided that an officer twice nonselected for promotion to the next higher grade was 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.

9.  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.

10.  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.

11.  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.  The evidence shows 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.  However, there appears to be an issue of equity involved in the applicant’s case and possibly in the cases of others in similar circumstances.

2.  The evidence shows 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 selective continuation in his case guarantee that he would be selected for promotion.

3.  The Department recognized the inconsistency of the law where it afforded Regular Army officers separation pay when they declined selective continuation and yet denied OTRA officers the same benefits.  Accordingly, the law was amended by the 2001 NDAA.  This resulted in 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 clear the Department attempted to rectify the injustice with the law change, 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.  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 applicant and the other officers concerned were at the mid-point in their careers, SELCON could not take them to retirement eligibility, which required some very difficult decisions be made by these officers.  It appears 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.  In view of the facts of this case, as a matter of equity and justice, the applicant should be granted full 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 to “FULL” involuntary separation pay, as an exception to policy, due to his being twice non-selected for promotion.

BOARD VOTE:  

__JHL___  __AO__  __MKP__   GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Joann H. Langston
		 CHAIRPERSON

		

INDEX

CASE ID	AR2003085973	
SUFFIX		
RECON		
DATE BOARDED	203/10/23	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/10/07	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	 GRANT	
REVIEW AUTHORITY		
ISSUES         1. 283	128.0000	
2.		
3.		
4.		
5.		
6.