PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           7 December 2000                  
	DOCKET NUMBER:   AR1999031736

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Mr. Ernest W. Lutz Jr.		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, correction of his military records to show that he was entitled to a Special Separation Benefit (SSB) payment at the time of his separation from active duty in February 1992.

3.  The applicant states, in essence, that he requested the SSB and was led to believe that he would receive such a separation and payment.  He essentially believes that he followed the proper processing and counseling procedures and did not make a false claim.  He had more than 9 years on active duty when he was separated.  He has lost his paperwork in connection with his separation.  

4.  The applicant’s military records show that he had 4 years prior honorable active duty service in the United States Coast Guard from September 1972 through September 1976.  The highest rank he held was pay grade E-3.  This was followed by two years additional service in the Coast Guard Reserve.   On 
12 September 1986, he enlisted in the Regular Army for 3 years, in pay grade 
E-2, for training and duty in military occupational specialty (MOS) 52D (Power Generator Equipment Repairer).  He was advanced to pay grade E-3, with a waiver for 2 months time in grade and to pay grade E-4, without a waiver on 
1 February 1987.  He extended his first enlistment on two separate occasions for 6 months each, although his first extension is not a matter of record.  On 
16 August 1990, he reenlisted for 3 years, in pay grade E-4.  The expiration of his term of service would therefore have been 15 August 1993.   

5.  On 3 December 1991, while serving at Fort Ord, California, the applicant submitted a DA Form 4187 (Personnel Action) requesting early release from active duty under the provisions of paragraph 16-8, Army Regulation 635-200, and the Fiscal Year (FY92) Enlisted Volunteer Early Release Program.  Although he requested release on 4 January 1992, the approved release date was established by his battalion commander, the approval authority, as 10 January 1992.  

6.  On 23 December 1991, Orders 238-329 were issued by Headquarters, 
7th Infantry Division (Light) and Fort Ord, directing the separation of the applicant on 10 January 1992.  The order specified that he was not entitled to separation pay in accordance with Title 10, United States Code, section 1174.  This order was amended on 6 January 1992, to show a separation date of 21 January 1992. Entitlement to separation pay remained the same.  

7.  However, on 15 January 1992, the applicant submitted a second DA Form 4187 and requested early separation under the provisions of paragraph 16-8, Army Regulation 635-200, with entitlement to a SSB.  He also requested adjustment of his separation date to 4 February 1992.  

8.  In connection with this request, he submitted another DA Form 4187, dated   8 January 1992, in which he requested transfer to and affiliation with the Army Reserve (USAR) for a period of not less than 3 years and receipt of SSB.  This affiliation with the USAR for 3 years after separation was approved on the same date, by a sergeant first class, acting for a sergeant major, who was the senior recruiter for the USAR at Fort Ord.  

9.  On an unspecified date, the division artillery commander, with the rank of colonel, approved the overall request for early separation, to be effective 
4 February 1992, with entitlement to the SSB.  His characterization of service was established as honorable.

10.  On 31 January 1992, Fort Ord issued orders 20-358, amending the separation orders dated 23 December 1991 and 6 January 1992, to show that he was to be honorably separated on 4 February 1992, with entitlement to the SSB in accordance with Title 10, United States Code, sections 1174A and 1175.  He was given entitlement to the Transition Assistance Management Program, entitlement to medical benefits until 4 June 1992 and post exchange/
commissary privileges until 4 February 1994.  

11.  On 4 February 1992, the applicant was honorably discharged from active duty in pay grade E-4.  His DD Form 214 (Certificate of Release or Discharge from Active Duty), stated that he was being separated in accordance with Army Regulation 635-200, paragraph 16-8, by reason of Convenience of the Government:  FY92 Early Transition Program, with a separation program designator (SPD) of “JCC” and a reentry eligibility (RE) code of RE-2B.  Item 9 of the form (Command to Which Transferred) is marked “NA”.  Item 12 (Record of Service) shows a total of 5 years, 4 months and 23 days active service on this enlistment, 4 years prior active service (total of 9 years, 4 months and 23 days active service) and 2 years prior inactive service.  No mention was made in item 18 (Remarks) to show any entitlement to an SSB payment, and there is no evidence of record, or with his application that he ever received his SSB payment.  However, the Defense Finance and Accounting Service (DFAS) has indicated to the Board that the applicant received $13,621.44 in separation pay at the time of the final settlement of his pay accounts on 27 February 1992.   

12.  As a matter of policy, and in the absence of evidence to the contrary, the applicant would have been issued a DD Form 256a (Honorable Discharge Certificate), dated 4 February 1992.  

13.  On 12 November 1993, a DD Form 215 (Correction to DD Form 214) was issued correcting his RE code to RE-3C.  

14.  Army policy and the Department of Defense Military Pay  Manual (DODPM), Volume 7, at section 3507, based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntarily separated members.  The SSB is available to members who are retainable and voluntarily request separation from active duty prior to selection for an involuntary separation.  Generally, to qualify for the SSB, individuals must have served on active duty for more than 6 years prior to enactment of the law, served at least 5 years of continuous active duty immediately preceding the separation date, and must meet such other requirements as the Secretary may prescribe, which could include requirement relating to years of service, skill and grade.  The individual also must voluntarily agree to serve in one of the Ready Reserve components for a period of not less than 3 years after release from active duty.  The SSB is a single, lump-sum payment equal to 15 percent of the annual base pay of the service member times the number of years on active duty.  

15.  DA MILPER (Military Personnel) message 92-85, 7 January 1992, provided implementing instructions for the FY92 enlisted voluntary incentive programs to include the Voluntary Separation Incentive (VSI) (which essentially is a payment over a number of years corresponding with years of service in the USAR) or the SSB program.  Soldiers being separated under these programs were entitled to such benefits as extended usage of military medical, post exchange and commissary facilities.  The member had to enter into a written agreement to serve a minimum of 3 years in the Ready Reserve.  A soldier could request separation under the VSI/SSB programs even if they had an already approved request for early separation under the FY92 Enlisted Voluntary Early Transition Program.  Item 18 of the DD Form 214 would be annotated “SSB Payment $$$$$$” or “VSI PAYMENT $ (FIRST PAYMENT) for (YEARS).”  The narrative reason for separation would be:  “FY92 Enlisted Voluntary Early Transition Program,” the SPD would be “JCC” and the RE code would be RE-3 (would need a waiver to reenlist in the Regular Army), but enlistment or transfer into the USAR would be without a waiver.

16.  The DFAS, in an advisory opinion to the Board, has advised that the applicant's SPD of "JCC" did not entitle him to a SSB payment, rather only a 
reduced separation payment (10 percent of annual pay times years of service).  The SPD used should have been "MCB".  Further, the amount of $13,621.44 was paid in separation pay on 27 February 1992.  That office does not have the authority to change the SPD code issued by the respective military services.  

17.  The DFAS opinion was referred to the applicant for his information or comment.  He was advised that if he is paid an SSB payment, any separation pay received would be subtracted from the total SSB payment.  He failed to respond.  

CONCLUSIONS:

1.  The applicant’s records contain documentation that shows that while he initially was approved for an early separation program in December 1991, to be effective on 10 January 1992 (later 21 January 1992), he subsequently became eligible for separation under the VSI/SSB programs.  This new program, which was approved by law on 5 December 1991, and implemented by the Department of the Army on 7 January 1992, contained several requirements.  Of key importance was the requirement to voluntarily agree to serve in the Ready Reserve for  a minimum of 3 years after separation from active duty.  

2.  The evidence of record shows that the applicant had an approved agreement to serve in the USAR for 3 years, which was dated 8 January 1992.  On or about 15 January 1992, his request for separation with entitlement to the SSB was approved, to be effective 4 February 1992.  Military orders were issued by his installation verifying this entitlement.  

3.  However, the evidence of record shows that instead of being separated and transferred to the USAR on 4 February 1992, and payment of the SSB, he was instead discharged outright and received separation pay in the amount of 
13,631.44 (10 percent separation pay).  There is no evidence that he had any further association with the Army.  

4.  Therefore, it would be appropriate for the Board to correct the applicant’s records to show that he was only released from active duty on 4 February 1992, was transferred to the USAR Control Group (Reinforcement) and that he served in that organization for 3 years, and was honorably discharged after this period of service.  

5.  Further, his records should be corrected to show that he was entitled to receive an SSB payment.  However, since the DFAS has advised that payment of the SSB is only authorized in cases involving soldiers separated with the SPD "MCB", his current SPD of JCC should be changed, as an exception to announced Army policy to read MCB.  Recomputation of the final amount of separation pay to which he is entitled will be made by the DFAS. 

6.  Even though the applicant has not responded to the DFAS opinion, his SSB payment (15 percent of his annual base salary times his years of service) will be in excess of the amount of separation pay he received in February 1992.  Therefore, the Board concludes that favorable action is appropriate in this case.  

7.  Additionally, upon completion of this action, that his DD Form 214 be corrected to show the total amount of this payment in item 18 of that form. 

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

	a.  that the honorable discharge of the individual concerned on 4 February 1992 is void and without force or effect; 

b.  that on 4 February 1992 he was honorably released from active duty  by reason of the “FY92 Enlisted Voluntary Early Transition Program," and was transferred to the USAR Control Group (Reinforcement), with entitlement to an SSB payment; 

c.  that his assigned SPD in item 26 of the DD Form 214 be changed from "JCC" to "MCB" as an exception to Army policy;
 
d.  that he be given credit for 3 years service in the USAR Control Group (Reinforcement) and that on 3 February 1995 he was honorably discharged from the USAR and the Army at the completion of his required service; and 

e.  that he be issued an Honorable Discharge Certificate, dated 
3 February 1995 vice the Honorable Discharge Certificate now held by him, dated 4 February 1992.

2.  That upon completion of the above actions, that his case be referred to the DFAS for computation and payment of any monies owed to him under the SSB program.

3.  That upon notification of the amount of the SSB payment, that his DD Form 214 be further corrected to show in item 18 the amount of the SSB payment.  

BOARD VOTE:  

__rvo___  __jpi ____  __ewl ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR1999031736	
SUFFIX		
RECON		
DATE BOARDED	20001207	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19920204	
DISCHARGE AUTHORITY	AR635-200, Paragraph 16-8	
DISCHARGE REASON	A05.00	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY	DASA	
ISSUES         1.	110.00	
2.	128.11	
3.	A01.08	
4.	A01.14	
5.	A92.18	
6.