MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 May 2000                   
	DOCKET NUMBER:   AR1999030429

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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, that his date of separation be changed to March 1994 and he be authorized five annual payments of the Reserve Special Separation Pay (RSSP).

APPLICANT STATES:  That he was forced out of the service due to maximum years of service (MYOS) after the fact in order to deny him payment of the RSSP.  Had he been properly separated in March 1994, he would have been entitled to five annual payments of the RSSP.  The law was changed in October 1994 to allow only one annual payment.  He was notified in April 1995 that he had to separate. The Defense Finance and Accounting Service (DFAS) paid him two payments but then they notified him the second payment was in error and have charged him with a debt for the second payment.  Supporting evidence is as listed on the DD Form 149.

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

He was born on 6 December 1945.  He enlisted in the Army National Guard on 28 March 1967 and transferred to the U. S. Army Reserve on 27 February 1990. He was promoted to Sergeant First Class, E-7 on 3 December 1991.  He was assigned to the 3292d U. S. Army Reserve Forces School (USARFS) when he reached 27 years of service on 27 March 1994.

On 23 April 1995, the applicant was counseled by his unit that he had 28 years of qualifying service for non-regular retired pay and that he must be separated.  In an addendum to his request for transfer to the Retired Reserve he acknowledged that the SSP is a lump sum payment.  He elected transfer to the Retired Reserve with Special Separation Pay.  Orders were published 1 June 1995 transferring him to the Retired Reserve effective 30 April 1995.  The additional instructions on his orders note his Selected Reserve Transition Program Type as “XJ.”  The applicant received RSSP in the amount of $2,861.89.

Around April 1996, the applicant received a second RSSP payment in the amount of $2,861.89.  In 1999, DFAS notified him the second payment was in error and billed him for repayment of the $2,861.89.

Army Regulation 140-10, effective 1 July 1990, prescribes policies, responsibilities and procedures to assign, remove, or transfer USAR soldiers.  Paragraph 7-1 provides that soldiers in the grade of E7 would be removed from an active status and discharged or transferred to the Retired Reserve upon completing 30 years of service.  Department of the Army, DAPE-MPE message 192021Z May 1993 changed the 30-year requirement to 27 years effective 1 July 1993.  The message requested the widest possible dissemination of the policy to subordinate units so as to ensure advance notification was appropriately provided to all commanders and enlisted soldiers.
On 23 October 1992, the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, established the Selected Reserve Transition Program (SRTP).

On 11 March 1993, implementation of the SRTP began.  All eligible soldiers with 20 or more qualifying years of service who were separated for unit inactivation, maximum years of service, or several other reasons were entitled to 5 annual payments of separation pay.

On 5 October 1994, the National Defense Authorization Act for Fiscal Year 1995, Public Law 103-337, modified the SRTP.  Soldiers involuntarily reassigned due to qualitative or selective retention board (QRB/SRB) action or for MYOS were entitled to only one separation payment.  (It was further amended on 1 October 1996 to provide that soldiers separated for these reasons were no longer eligible for the SRTP.)

Separation type codes were used to identify the category of soldiers authorized to receive RSSP.  Code XA identified an Army Reserve, Army National Guard or Individual Mobilization Augmentee (IMA) soldier who lost his or her unit position due to unit inactivation/reorganization/relocation or through QRB/SRB or MYOS prior to 5 October 1994 and was authorized 5 annual payments.  Code XJ identified an Army Reserve or Army National Guard or IMA soldier who was separated through QRB/SRB or MYOS after 5 October 1994 and was authorized one payment.

DFAS has determined that during the period April 1994 through April 1995 the applicant earned $6,000.69 in drill and annual training pay.  In addition, he earned about 76 retirement points during this period (at a current value of $0.217 per point).

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.  While the Board concludes that there is evidence of Government error, the applicant has not shown that it was deliberate, as claimed, nor that he did not acquiesce, even if only passively, in his retention beyond 27 years.

2.  The applicant contends that he was forced out due to MYOS after the fact in order to deny him payment of the RSSP.  The Board does not find it reasonable to reach this conclusion.  If that had been the intention of his unit or the Army, it would have been far more reasonable to “force” him out in November 1994 and save the Army an additional $3,000 in drill pay in addition to the extra four RSSP payments.
3.  In addition, the applicant was a senior non-commissioned officer who was assigned to a USARF school, not to an isolated unit far from a higher headquarters.  The Board finds it difficult to believe, without evidence, that the applicant was not aware of this policy change when or shortly after it was made.  As such, the Board concludes that the applicant was aware of the policy change and at least passively acquiesced in continuing in an active status and drawing drill and annual training pay.  That acquiescence resulted in him drawing just over $6,000 in immediately-available pay and earning 76 retirement points with a current value of about $198.00 in annual retired pay (with presumably a higher value by the time he actually begins to draw retired pay).  

4.  The applicant signed an addendum on 23 April 1995 acknowledging that he knew his RSSP would be a lump sum payment.  He did not question at that time the timing of his separation.  He knew at the time DFAS sent him the second payment that he was only due one payment.  DFAS did not bill him until 1999 and he had not received his third or fourth payments in 1997 and 1998 and he did not question at those times the timing of his separation.  If he had returned the second payment to DFAS at the time he received it he would not now be charged with a debt.  Since the applicant knew at the time that he was not eligible to receive the second payment, the Board concludes that the debt is valid.

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

__jns___  __mdm___  __mw____  DENY APPLICATION

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

INDEX

CASE ID	AR1999030429	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.