MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            6 April 2000
	DOCKET NUMBER:   AR1999030601

	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. Jessie B. Strickland 		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. James E. Anderholm		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 separation code on his report of separation (DD Form 214) be corrected so as to allow him to keep his separation pay.

APPLICANT STATES:  In effect, that he received separation pay at the time of his release from active duty and has subsequently been notified that based on the separation code contained on his DD Form 214, he was not entitled to receive separation pay.  He goes on to state that his orders authorized him    one-half separation pay and he desires the proper separation code be issued that will allow him to keep his separation pay.  In support of his application he submits a copy of the demand for payment from The Treasury Department in the amount of $3,576.13.

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

He enlisted in Portland, Oregon on 19 October 1990 for a period of 4 years and training as a motor transport operator.  He successfully completed his training and was promoted to the pay grade of E-5 on 1 June 1994.

On 28 October 1994 he reenlisted for a period of 3 years.  He remained on active duty until he was honorably released from active duty (REFRAD) on 27 October 1997 due to the expiration of his term of service (ETS).  He had served 7 years and 9 days of total active service and received one-half separation pay in the amount of $6,366.78.  He was issued a separation code of “MBK”.

He was transferred to the USAR Control Group (Reinforcement) where he remained until he was honorably discharged on 20 October 1998.

A review of his separation orders reveals that his orders authorized him one-half separation pay as well.

A review of the applicant’s Official Military Personnel File (OMPF) failed to reveal that the applicant was barred from reenlistment or denied continuation/reenlistment.

Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay.  It states, in pertinent part, that one-half separation pay is authorized for soldiers who are not fully qualified for retention and are denied continuation.  Soldiers who are eligible for reenlistment/continuation and elect to separate on their ETS are not authorized separation pay. 

Army Regulation 635-5-1 provides the separation codes and narrative reasons for separation that are to be placed on the DD Form 214 at the time of separation based on the circumstances surrounding the separation.  It states, in pertinent part, that the separation code “MBK” will be used for enlisted personnel separating from the service on their schedule ETS.

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.  A review of the applicant’s OMPF failed to reveal that he was denied reenlistment or continuation on active duty.  Therefore, in the absence of evidence to the contrary, it must be presumed that he was erroneously authorized one-half separation pay at the time of his REFRAD.

2.  It also appears that his separation code (MBK) on his DD Form 214 is correct and that he was erroneously paid one-half separation pay at the time of separation.

3.  Inasmuch as the applicant was not entitled to receive separation pay and since he has not advanced any reasons why he should not repay the debt, the Board finds no reason to remit or cancel his debt to the government.  Furthermore, since his DD Form 214 contains the correct separation code, there is no basis to change that code as well.

4.  While the applicant may believe that he is entitled to the unauthorized funds because the Department made a mistake, such is not the case.  Likewise, when the Department makes a mistake in its favor, the individual concerned is entitled to receive their funds back as well when the error is detected.  Although it is unfortunate that such an error occurred, to grant the applicant authorization for separation pay would afford him a benefit that is not afforded to others in similar circumstances.

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

__ja ____  ___ew___  ___js ___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030601	
SUFFIX		
RECON		
DATE BOARDED	2000/04/06	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  110.0000	189/CORR 214	
2.  128.0800	291/SEP PAY	
3.		
4.		
5.		
6.