PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:              28 September 2000                  
	DOCKET NUMBER:      AR1999031858

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. Ernest M. Willcher		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 that the amount of separation pay which is listed on his separation document, DD Form 214, be corrected from $12,010.98 to $10,527.22.

3.  The applicant states that an error was made on the entry concerning the amount of separation pay that he was paid on his DD Form 214.  The applicant explains that he wants this corrected because the Department of Veterans Affairs (DVA) is withholding his disability pension until he repays the incorrect separation pay amount which is listed on his DD Form 214.

4.  In support of his application he submits a letter from the Defense Finance and Accounting Service (DFAS) which informed the applicant that an error was made in paying him separation pay, that he was not entitled to separation pay because of the type of separation he received.  The DFAS explained to the applicant that he was paid $8,784.82 in separation pay.  Therefore, of the $10,527.32 he was given on his final payment from the Army, he was only entitled to $2,172.32 in pay and allowances and no separation pay.  The applicant also submits a letter from the DVA in which he was informed that because law precludes the duplication of benefits, his disability pension would be withheld until such time as it would total his separation pay in the amount of $12,010.89.

5.  The applicant’s military records show that he enlisted in the Regular Army on 28 February 1983, was awarded the military occupational specialty of motor transport operator, and was promoted to pay grade E-5.  He was honorably discharged on 15 August 1995 due to a bar to reenlistment.  The DD Form 214 issued to the applicant states in pertinent part in Item 18, Remarks, “Separation pay:  $12,010.89” and “Soldier is authorized TAMP and is entitled to one-half separation pay IAW 10 USC 1174.”

6.  Department of the Army Circular 635-92-1, Separation Pay, Table E-3, “Not Eligible for Separation Pay”, lists the Separation Program Designator “KGH”, which is the SPD entered on the applicant’s DD Form 214.  This means that the applicant was not entitled to separation pay when he was discharged.

CONCLUSIONS:

1.  It is evident that the applicant was paid $8,784.82 in separation pay and that payment was erroneously made, based on the letter from DFAS explaining the debt to the applicant.  The applicant mistakenly believes that he was paid 

$10,527.32 in separation pay since that was the amount he received in his final payment from the Army.  However, he was entitled to $2,172.32 at that time in pay and allowances, giving him $8,784.82 in erroneous separation pay.  It is unclear where the amount $12,010.89, the amount recorded on the applicant’s DD Form 214 as separation pay, was derived.

2.  The DVA, according to its own laws and regulations, is collecting $12,010.89 from the applicant because that is the amount of separation pay listed on the applicant’s DD Form 214, even though that is not the amount he actually received.  While it is the responsibility of the applicant to get the DVA to correct its recoupment of his disability, since the DVA bases its recoupment on the information contained on a soldier’s DD Form 214, and the applicant’s DD Form 214 erroneously shows the applicant was entitled to separation pay, the Board must correct the applicant’s DD Form 214 before the applicant can successfully petition the DVA to terminate its collection action.

3.  While the applicant received $8,784.82 in separation pay, as mentioned above it was erroneously paid since his type of his separation was not authorized separation pay.  DFAS is now collecting that amount.

4.  If the applicant was properly processed at the time of his separation, he would not have received any separation pay and his DD Form 214 would not have an entry concerning separation pay.

5.  Since the applicant was not entitled to separation pay, and since the separation pay he received is now being collected from him, his DD Form 214 should be corrected to reflect that he did not receive any separation pay.  Such a correction should enable him to receive the entire disability pension he is owed by the DVA but which was withheld due to his separation pay by the Army.

6.  This correction shall not act as a forgiveness or waiver of the applicant’s debt established by DFAS.  It is intended to place the applicant in the same position with the DVA as he would be when, and if, the debt based on the overpayment at time of separation is repaid.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by changing the following entries in Item 18, Remarks, of the DD Form 214 of the individual concerned by:

a.  deleting “Separation pay:  $12,010.89”; and 

b.  deleting “. . . and is entitled to one-half separation pay IAW 10 USC 1174” from the entry “Soldier is authorized TAMP and is entitled to one-half separation pay IAW 10 USC 1174.”

BOARD VOTE:  

____rvo_  ___dph__  ___emw__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________Raymond V. O'Connor, Jr.____
		        CHAIRPERSON

INDEX

CASE ID	AR1999031858	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000928	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.