IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150004013 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150004013 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________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. IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150004013 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 the narrative reason for separation on her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show expiration term of service (ETS) instead of involuntary separation. 2. The applicant states: a. The ETS date on her contract was 17 November 2007. She was flagged for being overweight but she was not involuntarily separated. She was able to finish her enlistment contract. b. Her DD Form 214 indicates she is entitled to separation pay in the amount of $13,163.11. She was awarded that money by the Department of Veterans Affairs (VA) upon her ETS. In 2011, the VA informed her that she was not entitled to the separation pay because she had finished her contract, reached her ETS date, and was not involuntarily separated. The VA took her monthly disability until the debt in the amount of $13,163.11 was paid in full. 3. The applicant provides a copy of her DD Form 214. 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 5 January 1999 for a period of 4 years. On 16 October 2002, she voluntarily extended her enlistment for 10 months and her new ETS date was established as 4 November 2003. 3. She reenlisted on 25 October 2002 for 4 years and again on 12 August 2005 for 2 years. 4. Her Enlisted Record Brief indicates she was flagged on 17 April 2007 for Army Weight Control Program in Section I. Section III includes code "9Z" indicating she is prohibited for reenlistment based on weight standards. 5. On 17 November 2007, she was honorably discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service in the rank of sergeant/E-5. On the date of discharge, she had completed 8 years, 10 months, and 13 days of net active service. Her DD Form 214 shows in: a. Item 18 (Remarks), she was retained in the service for 99 days for the convenience of the Government under the provisions of Title 10, U.S. Code 12305; she received separation pay in the amount of $13,163.11; she has completed her first full term of service; and she is entitled to half involuntary separation pay. b. Item 26 (Separation Code), she was assigned a separation code of "JBK" for an involuntary release from active duty. c. Item 28 (Narrative Reason for Separation), she was discharged by reason of completion of required active service. REFERENCES: 1. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons. a. This regulation shows the SPD code of "JBK" as shown on the applicant's DD Form 214 specifies the narrative reason for separation as involuntary release from active duty for completion of required active service and the authority for separation under this SPD is Army Regulation 635-200, chapter 4. b. This regulation further shows the SPD code of "MBK" specifies the narrative reason for separation as voluntary release from active duty for completion of required active service and the authority for separation under this SPD is Army Regulation 635-200, chapter 4. 2. Title 10, US Code, section 1174, states that a regular enlisted member of an armed force who is discharged involuntarily or as a result of the denial of the reenlistment of the member and who has completed six or more, but less than 20 years of active service immediately before that discharge is entitled to separation pay competed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay. a. Subsection (e)(1)(A) states, as a condition of receiving separation pay under this section, a person otherwise eligible for that pay shall be required to enter into a written agreement with the Secretary concerned to serve in the Ready Reserve of a reserve component for a period of not less than three years following the person's discharge or release from active duty. b. Subsection (h)(1) states, a member who has received separation pay under this section, or separation pay, severance pay, or readjustment pay under any other provision of law, based on service in the armed forces, and who later qualifies for retired or retainer pay under this title or title 14 shall have deducted from each payment of such retired or retainer pay an amount, in such schedule of monthly installments as the Secretary of Defense shall specify, taking into account the financial ability of the member to pay and avoiding the imposition of undue financial hardship on the member and member’s dependents, until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay so paid. c. Subsection (h)(2) states, a member who has received separation pay under this section, or severance pay or readjustment pay under any other provision of law, based on service in the armed forces shall not be deprived, by reason of his receipt of such separation pay, severance pay, or readjustment pay, of any disability compensation to which he is entitled under the laws administered by the Department of Veterans Affairs, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay, severance pay, and readjustment pay received, less the amount of Federal income tax withheld from such pay (such withholding being at the flat withholding rate for Federal income tax withholding, as in effect pursuant to regulations prescribed under chapter 24 of the Internal Revenue Code of 1986). Notwithstanding the preceding sentence, no deduction may be made from disability compensation for the amount of any separation pay, severance pay, or readjustment pay received because of an earlier discharge or release from a period of active duty if the disability which is the basis for that disability compensation was incurred or aggravated during a later period of active duty. DISCUSSION: 1. The applicant's discharge on 17 November 2007, by reason of completion of active service was accomplished in accordance with the applicable regulations. 2. The evidence show the applicant was involuntarily discharged from the Regular Army. Her DD Form 214 was annotated to show: a. She was honorably discharged; b. Her discharge was in accordance with chapter 4, Army Regulation 635-200; c. Her separation code is "JBK"; and d. The narrative reason for discharge was, "Completion of Required Active Service." 3. The applicant's DD Form 214 includes the remark, "Entitled to Half Involuntary Separation Pay" and the amount is listed as $13,163.11. 4. The applicant contends the VA informed her that she was not entitled to separation pay because she had finished her contract and reached her ETS date at the time of discharge. 5. Title 10, US Code, section 1174, states, in effect, that the VA may not deprive service members of separation or severance pay they received as a result of their service in the military. However, the amount of that severance pay or separation pay will be deducted from the disability compensation in an amount equal to the total amount of separation pay or severance pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004013 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004013 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2