BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000745 BOARD VOTE: ___x______ __x_____ __x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000745 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he signed a valid service agreement prior to separating from active duty and paying him full separation pay. ____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000745 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests payment of separation pay from the Army. 2. The applicant states he is entitled to his full separation pay according to his DD Form 214 (Certificate of Release or Discharge from Active Duty) and separation orders. However, he never received a DA Form 4187 (Personnel Action) from the Reserve Component Career Counselor at Hunter Army Airfield Base, GA, because this person was on leave when he out-processed from the Army. He contacted the Hunter Army Airfield Base finance office and was told he would receive his separation pay 30 days after his expiration of term of service (ETS). He has not received this pay. He was advised that a DA Form 4187 is required from the U.S. Army Reserve stating he has cleared the Ready Reserve. His orders state he did not have to enlist in the Ready Reserve. His ETS orders also did not state he had to join the Ready Reserve. 3. The applicant provides Headquarters, 3rd Infantry Division and Fort Stewart, Orders 189-0005 and his DD Form 214. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 20 November 2007 and he held military occupational specialty 25B (Information Technology Specialist). He reenlisted on 3 October 2012. 2. Orders 189-0005, issued by Headquarters, 3rd Infantry Division and Fort Stewart, GA, on 8 July 2015, reassigned him for the purpose of discharge from the Regular Army effective 1 October 2015. The orders state he was entitled to full separation pay in accordance with Title 10, U.S. Code, section 1174, for a period of service shown as 7 years, 10 months, and 12 days. 3. He was honorably separated on 1 October 2015. He completed 7 years, 10 months, and 12 days of active service. His DD Form 214 lists in: * Item 18 (Remarks) – separation pay $23,045.04 * Item 25 (Separation Authority) – Army Regulation (AR) 635-200 (Active Duty Enlisted Separations), paragraph 16-5 * Item 28 (Narrative Reason for Separation) – insufficient retainability (economic reasons) 4. On 16 November 2016, an advisory opinion was provided by the Chief, Compensation and Entitlements Division, Army G-1. The G-1 official stated: a. There was a valid reason why the Army did not afford the applicant an opportunity to sign a Ready Reserve agreement prior to separating from active duty. Consequently, the Defense Finance and Accounting Service (DFAS) directed its military pay offices to stop issuing payment to Soldiers when the request for separation pay was not accompanied by a written agreement to serve a minimum of 3 years in the Ready Reserve. Since the applicant was not currently serving an obligation in the Reserve Component, which would have begun immediately following discharge from active duty, law and policy prohibited the Army from entering the applicant into a Ready Reserve service agreement for the purpose of separation pay. b. He recommended correction of the applicant's records to show he signed a valid service agreement prior to separating from active duty, approval of the applicant's entitlement to separation pay, and authorizing DFAS to disburse the payment. He also recommended correction of the applicant's separation documents to reflect entitlement to separation pay, as applicable. 5. The advisory opinion was provided to the applicant on 18 November 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 16-5 provides for early separation due to reduction in force, strength limitations, or budgetary constraints. Soldiers could be separated prior to their ETS or period for which ordered to active duty when strength authorization limitations, strength restrictions, or budgetary constraints required the size of the enlisted force to be reduced. 2. Title 10, U.S. Code, states in: a. section 1174(b)(1), 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 6 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; b. section 1174(c)(1), as a condition of receiving separation pay under this section, a person otherwise eligible for that pay shall be required to enter into a written agreement with the Secretary concerned to serve in the Ready Reserve of a Reserve Component for a period of not less than 3 years following the person's discharge or release from active duty; and c. section 1174(e)(1)(A), each person who enters into an agreement who is not already a Reserve of an Armed Force and who is qualified shall, upon such person's discharge or release from active duty, be enlisted or appointed, as appropriate, as a Reserve and be transferred to a Reserve Component. 3. All Army Activities Message 054/2015, dated 27 March 2015 with an expiration date of 19 March 2016, provided clarification of the statute and Department of Defense policy on involuntary separation pay to allow for the timely processing of the entitlement prior to the Soldier's discharge or release from active duty. This message also stated: a. Soldiers eligible for involuntary separation pay had to enter into an agreement with the Army to serve a minimum of 3 years in the Ready Reserve of the Reserve Component in one of the military services, plus any other unexpired military service obligation. There were no exceptions. b. Soldiers eligible for the separation pay should obtain a service agreement from a Reserve Component Career Counselor at the installation. The agreement was to be prepared on a DA Form 4187 and both the Soldier and the Reserve Component Career Counselor had to sign the agreement. DISCUSSION: 1. The applicant was separated from the RA on 1 October 2015, with what appears to be entitlement to full separation pay. On separation, he did not enter into a written agreement to serve in the Ready Reserve of a Reserve Component for 3 years. Thus he is not currently serving in an obligation status in the Reserve Component for the purpose of receiving separation pay. Accordingly, DFAS could not pay him separation pay. 2. By law, to receive separation pay a member must enter into a written agreement to serve in the Reserve Component for 3 years. As he indicated in his statement, he attempted to enter into an agreement with a Reserve Component Career Counselor prior to his separation date. This action was not completed. It appears an appropriate remedy would be to correct his record to show he did enter into a written service agreement dated one day prior to his separation date from active duty (30 September 2015). Upon preparation of a 3-year written service agreement, the applicant should be paid separation pay as a result of this correction. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000745 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000745 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2