BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100008766 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the correct amount of disability severance pay he received upon separation from active duty.

2.  The applicant states his DD Form 214 shows he received disability severance pay in the amount of $43,588.80 but he only received $29,059.20.  He contends that after his DD Form 214 was completed, an audit was done and it was discovered that he was only due $29,059.20.  He adds that the Department of Veterans Affairs (DVA) is making him pay back $43,588.80 of the severance when he only owed $29,059.20.

3.  The applicant provides a copy of his DD Form 214 and final Leave and Earning Statement (LES).

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.  After having had prior service in the Regular Army (RA) and the Army National Guard (ARNG), the applicant again enlisted in the RA on 5 September 1999.

3.  On 10 May 2005, while stationed at Fort Wainwright, AK, a Physical Evaluation Board (PEB) found him unfit for continued active duty service.  He was recommended for a 20 percent (%) disability rating percentage with a recommendation for separation from the service with disability severance pay.

4.  On 12 May 2005, the applicant was advised of the findings and recommendations of the PEB.  Having received a full explanation of the results of the findings and recommendations and his legal rights thereto, the applicant concurred with proceedings and waived a formal hearing of his case.

5.  Accordingly, on 5 July 2005, he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of physical disability with severance pay.  Block 18 (Remarks) of his DD Form 214 shows the entry "DISABILITY SEVERANCE PAY -- $43,588.80."

6.  On 28 June 2006, C Detachment, 125th Finance Battalion, Fort Wainwright, issued the applicant a Memorandum for Record, Subject:  Disability Severance Pay.  The memorandum included a copy of his final LES for the period 1-5 July 2005.  This LES shows under the entitlements section that he was paid $29,059.20 in disability severance pay.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes the standardized policy for preparing and distributing the DD Form 214.  It states the "REMARKS" block is used for Headquarters, Department of the Army mandatory entries when a separate block is not available.  When a Soldier receives separation/readjustment or non-disability severance pay (as indicated by the finance office), the type of pay and amount are to be entered here.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to reflect the correct amount of disability severance pay he received upon separation from active duty has been carefully reviewed.

2.  Block 18 of his DD Form 214 shows he received $43,588.80; however, his final LES shows he only received $29,059.20.  Therefore, it would be appropriate to correct his DD Form 214 to show he only received disability severance pay in the amount of $29,059.20.

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 deleting from block 18 of his DD Form 214 the entry "DISABILITY SEVERANCE PAY -- $43588.80" and replacing it with the entry "DISABILITY SEVERANCE PAY -- $29059.20."



      ________x_______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100008766



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20100008766