RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 February 2008
	DOCKET NUMBER:  AR20070014909 


	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.


x

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of the amount of severance pay shown in item 18 (Remarks) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show $40,809.60.

2.  The applicant states, in effect, that his severance pay was handled by hand and was incorrect.  The Department of Veterans Affairs (DVA) recouped his severance pay based on an incorrect gross amount.  He states that the DVA should be using the correct gross amount less federal income tax withheld.  

3.  The applicant provides a copy of his Leave and Earnings Statement worksheet for December 1997; his DD Form 214; his NBD Bank Statement for the closing date 9 December 1997; and a payment authorization voucher.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 9 February 1984 and continued to serve on active duty through a series of reenlistments.  

3.  The applicant was honorably discharged on 2 December 1997 under the provisions of Army Regulation 635-40, paragraph 4-24b(3) based on physical disability with severance pay.

4.  Item 18 on the applicant's DD Form 214 for the period ending 2 December 1997 shows the entry "DISABILITY SEVERANCE PAY:  $48,476.40."

5.  The applicant’s Leave and Earnings Statement for the period 1 to 31 January 1998 from the Defense Finance and Accounting Service (DFAS) shows the amount of his disability severance pay as $40,809.60.  

6.  Army Regulation 635-5 establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 18 (Remarks) is used for entries required by Headquarters Department of the Army for which a separate block is not available and for completing entries that are too long for their blocks.  At a later date, a message was issued to provide guidance for the separation pay/readjustment/severance pay (disability or non-disability) to be annotated on the DD Form 214 and DD Form 215 (Correction to DD Form 214).  This message states, in pertinent part, that when a Soldier receives separation/readjustment/severance pay (disability or non-disability), the “Gross” (not NET) amount will be requested from Finance and the gross amount of the applicable pay will be entered in item 18 on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 reflects that his disability severance pay amount was $48,476.40.  However, his LES from DFAS verifies that he was entitled to $40,809.60 disability severance pay.  

2.  It appears that an administrative error has occurred in this case.  Therefore, it would be appropriate to amend item 18 on his DD Form 214 for the period ending 2 December 1997 to show his disability severance pay as $40,809.60. 

BOARD VOTE:

x______  x____ x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 

amending item 18 on his DD Form 214 for the period ending 2 December 1997 to show the entry "DISABILITY SEVERANCE PAY--$40,809.60."




x_________
          CHAIRPERSON


INDEX

CASE ID
AR20070014909
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080226
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
100.0000
2.

3.

4.

5.

6.