PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 December 2001                   
	DOCKET NUMBER:   AR2001059560

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Lester Echols		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 his Certificate of Release or Discharge from Active Duty, DD Form 214, be amended to give a separation code (SPD) that will allow him to retain his separation pay.

3.  The applicant states that prior to his outprocessing an in-service recruiter told him that he could get separation pay if he would join the National Guard.  He did as he was advised and his separation orders were amended to authorize him   full separation pay.  In November 1997, the Defense Finance and Accounting Service – Denver (DFAS-DE) garnished his drill pay.  Before he could clear this up, he went to Turkey with his active duty spouse.  Upon returning to the States, he was informed that his SPD was wrong and that was the reason his separation pay was being collected as a debt.  

4.  The applicant’s military records are not available.  Information contained herein was obtained from alternate sources.

5.  The applicant enlisted in the Regular Army on 26 November 1985.  

6.  Orders dated 11 September 1996 assigned the applicant to the U. S. Army Transition Center with a date of discharge of 14 March 1997.  On 6 December 1996, the 11 September 1996 orders were amended to authorize the applicant full separation pay.  On 13 December 1996, the applicant was recruited by the Mississippi Army National Guard as an in-service recruit.  He was released from active duty on 14 March 1997, apparently upon reaching his retention control point.  His DD Form 214, item 26 shows he was given an SPD of KBK (voluntary discharge upon completion of required active service).  

7.  On 31 March 1998, the applicant was discharged from the Army National Guard by reason of temporarily residing overseas and transferred to the U. S. Army Reserve Control Group (Reinforcement) for completion of his contractual obligation.

8.  On 7 August 1998, DFAS-DE notified the applicant that it appeared from his DD Form 214 that he was intended to received separation pay but his SPD did not authorize separation pay.

9.  The Department of Defense Financial Management Regulation, paragraph 350201 entitles a member to full separation pay when the member is fully qualified for retention but is denied reenlistment and the member has entered into a written agreement to serve in the Ready Reserve of a Reserve component for a minimum period of 3 years following the separation from active duty.  

10.  On 23 August 2001, DFAS-Indianapolis Center informed the Board’s analyst that an SPD of JBK (involuntary discharge upon completion of required active service) would entitle a member to either full or half separation pay depending on the information contained in the separation orders.

11.  In the processing of this case, an advisory opinion was obtained from the   U. S. Total Army Personnel Command (PERSCOM) because it appeared the applicant may have been erroneously identified as having reached his retention control point.  PERSCOM opined that the applicant’s case had merit and granted partial relief by issuing a Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, DD Form 215, correcting his SPD to read JBK.  PERSCOM opined that any monies collected by DFAS to date, to include all Federal income tax refunds withheld, be refunded.

12.  A copy of the advisory opinion was provided to the applicant for comment.  He did not respond in the given time frame.

CONCLUSIONS:

1.  It appears that the applicant was entitled to full separation pay but because he was given the incorrect SPD DFAS is collecting that pay as a debt.  PERSCOM has taken partial steps to grant relief by amending his DD Form 214 to show he was given an SPD that would authorize him full separation pay.

2.  In view of the foregoing and in accordance with the advisory opinion, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was authorized full separation pay, that any efforts to collect his separation pay be stopped, that any separation pay collected thus far be refunded to the applicant to include any and all Federal income tax refunds that may have been garnished by the Government in its collection efforts and any interest collected by the Government in its collection efforts.

2.  That if any notice of debt against the applicant has gone to any credit agency, that those agencies be notified that the debt regarding this collection was erroneous.

3.  That so much of the application as is in excess of the foregoing (correction of the applicant’s DD Form 214) be denied as this correction has already been made.

BOARD VOTE:  

__jns___  __tbr___  __le____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001059560	
SUFFIX		
RECON		
DATE BOARDED	20011220	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.