MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             25 July 2000                 
	DOCKET NUMBER:    AR1999034697

	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	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 debt to the government be forgiven.

APPLICANT STATES : That he was notified in March 1993 that he would be separated due to maximum years of service (MYOS).  He knew of others similarly selected who were entitled to five annual special separation payments. The law was changed in October 1994 to allow only one annual payment.  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. 

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

He was born on 17 March 1945. He served in the United States Naval Reserve 26 March 1962 – 25 March 1978 and 8 February 1979 – 7 February 1980; he enlisted into the U. S. Army Reserve (USAR) on 8 February 1980.  He was assigned to the 2075th U. S. Army Reserve Forces School when he reached 30 years of service on 9 February 1993.  His command requested an extension allowing him to serve until his discharged on 30 April 1995.

On 4 March 1993, the applicant was counseled by his unit that he been identified for mandatory removal from the USAR based on total years of service and that he must be separated. 

On 13 March 1985 the applicant signed a DA Form 4187(Personnel Action).  On the DA 4187 he requested transfer to the Retired Reserve with special separation Pay.  He acknowledged that the special separation pay is a lump sum payment.

Orders were published 30 April 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.” and that single payment of special separation pay is authorized by Section 1332, 10 USC, IAW PL 102-484.

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) 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 E8 would be removed from an active status and discharged or transferred to the Retired Reserve upon completing 32 years of service. Department of the Army, DAPE-MPE message 192021Z May 1993 changed the 32-year requirement to 29 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 special separation payment.  Code XA identified an Army Reserve, Army National Guard or Individual Mobilization Augmentee 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.

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 stated DFAS notified him the second payment was in error and billed him for repayment.

2.  The applicant signed a DA Form 4187 on 13 March 1995 acknowledging that he knew his special separation payment would be a lump sum payment and his discharge orders likewise clearly state he would receive a single payment.  He knew at the time DFAS sent him the second payment that he was only due one payment.  If he had questioned the second payment to DFAS at the time he received it he would not now be charged with a debt or would have funds available to return.  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.

3.  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

__tsk  ___  ___sk___  ___jhk___  DENY APPLICATION

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

INDEX

CASE ID	AR1999034697	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000725	
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.	128.08	
2.		
3.		
4.		
5.		
6.