MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           5 April 2000                  
	DOCKET NUMBER:   AR1999030849

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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 his DD Form 214 be corrected to indicate that he did not receive $766.80 in disability severance pay.

APPLICANT STATES:  That he never received this money.  He first tried to have this corrected on 20 June 1987 when he was a patient at a VA hospital in Tampa. He was informed that he did not have six months of service and he was not eligible [for severance pay].  Since then he has been granted a 10 percent service connected disability, and they [VA] kept the $766.80 they claimed that he received.   

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

The applicant enlisted in the Army for three years on 11 November 1974 and assigned to Fort Polk, Louisiana for training.

On 28 March 1975 a physical evaluation board (PEB) determined that the applicant was physically unfit because of his knee condition, and recommended a disability rating of 0 percent and that the applicant be separated from the Army with severance pay.  On 28 April 1975 the recommendation was approved by the Military Personnel Center and the applicant was awarded severance pay in the pay grade of E-2 .

On 1 April 1975 he received nonjudicial punishment under Article 15, UCMJ, for stealing private property from a fellow soldier.  

The applicant’s DD Form 214 shows that he was discharged on 8 May 1975 in the grade of E-2.  That form shows that he had 5 months and 8 days of service, and that he received severance pay of $766.80.  An order published by Fort Polk on 7 May 1975 indicates that the applicant was discharged on 8 May 1975 and that he was authorized severance pay in the grade of E-2 for 5 months and         8 days of service.

On 29 January 1976 the applicant requested that his DD Form 214 be corrected to show that he had 7 months and 8 days of service.  On 23 June 1976 his       DD Form 214 was corrected, but only to show that he had 5 months and 28 days of service. 

On 9 April 1998 the applicant made a similar request to this Board.  He was informed that the law governing consideration of claims, was intended to put a limit on the time period for which the government had to remain prepared to defend actions brought against it, and the government’s obligation to defend against claims is turned into an impossibility for agencies such as the Defense Finance and Accounting Service, which normally destroys records after six years if no claim had been filed, therefore, DFAS would be unable to determine the status of his severance pay.   Consequently, due to the passage of time, pertinent information had been destroyed, and favorable consideration was barred by laches.  His application was returned without action.

The applicant has submitted pay vouchers with his latest request.  His voucher for the period 1-30 April 1975 shows that he received a basic pay of $383.40.  His voucher for the period 1-31 May 1975 shows a basic pay of $383.40, an end of month pay of $276.00, and a clothing allowance of $3.80.

The DOD Financial Management Regulation states in pertinent part that a member separated from the military service for physical disability is entitled to severance pay if qualified as prescribed in personnel regulations of the military service concerned.  When a member is entitled to disability severance pay, separation orders specify this entitlement.  That regulation goes on to say that the member’s separation orders specify the total combined years of service to be counted in computing severance pay.  Round this total to the nearest whole year, with 6 months or more rounded up.  If a member has less than 6 months of combined service, there is no disability severance pay entitlement.

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.  The applicant did not have six months of service at the time of his discharge in May of 1975 and should not have been entitled to disability severance pay.  Nevertheless, his discharge with severance pay was approved by the Military Personnel Center, and both his DD Form 214 and his discharge order show that he was authorized disability separation pay.  By the same token, the May 1975 pay voucher that the applicant has submitted with his request, shows that he received pay through the month of May, even though his discharge occurred in the early part of that month. 

2.  Whether or not the applicant received disability separation pay cannot be determined, due to the passage of time.  The applicant was so informed in response to his first request to this Board, and nothing has yet surfaced to alter that response.  It is presumed that what the Army did at the time was to round up his period of service to six months and award him disability severance pay.  He has provided no evidence otherwise.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
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

___sk___  ___rvo___  ___le___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030849	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000405	
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.  283	128.08	
2.		
3.		
4.		
5.		
6.