IN THE CASE OF: BOARD DATE: 29 September 2016 DOCKET NUMBER: AR20150011269 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: 29 September 2016 DOCKET NUMBER: AR20150011269 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: 29 September 2016 DOCKET NUMBER: AR20150011269 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 relief from recoupment of separation pay from her military retired pay. She requests adjustment of military records to reflect the correct amount of separation pay she received. 2. The applicant states adjustment action was completed by the Army Board for Correction of Military Records (ABCMR) in March 2004, but the Defense Finance and Accounting Service (DFAS) is using inaccurate separation pay information in the recoupment action from her current retired pay, which is her sole source of income. She is currently unemployed. 3. The applicant states it is unjust and unfair for the Army to require the repayment of the separation entitlement after the Army failed to disclose to her throughout her military service which spanned over 26 years that she would have to repay the separation pay. a. The Army's failure to disclose the requirement to repay separation pay negated her ability to make informed decisions regarding accepting the separation pay, continuing active Federal military service, and/or planning financially to repay the separation pay if she continued her military service to retirement. b. Shortly after her involuntary separation she was hired and accepted a GS-0343-14 position with the Department of Veterans Affairs (VA) as a Management and Program Analyst. Upon notification of an opportunity to continue her active federal service in the Active Guard/Reserve (AGR) Program, she accepted an AGR position with the District of Columbia National Guard (DCNG). Had she known that returning to active Federal service was going to create such a financial and emotional crisis for her, she could have made an informed decision about her continued service in the United States Armed Forces. c. The DCNG unilaterally decided to hold an Active Service Management Board (ASMB), to use the service time covered by separation pay in calculating whether to submit her to the ASMB, as well as calculating her years of service toward retirement. d. She states when she was separated from Title 10 active duty in 2002 and later accepted a Title 32 AGR position, her credible years of service for retirement pay purposes should have restarted. 4. The applicant provides: * Headquarters, Fort Detrick, Frederick, MD Orders 148-2, dated 28 May 2002 * Headquarters, United States Army Garrison, Fort Detrick, MD Orders 154-0001, dated 3 June 2002 * DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 1 September 2002 * Defense Finance and Accounting Service (DFAS)-DE Form 0-641 (Statement of Military Pay Account) * DFAS-DE Form 0-642 (Statement of Military Leave Account) * Leave and Earnings Statement for the period 1-30 September 2002 * two Standard Form (SF) 50's (Notification of Personnel Action) * a memorandum, dated 30 September 2003, from U.S. Total Army Personnel Command, St Louis, MO * Army Board for Correction of Military Records (ABCMR) Docket AR2008098009, dated 9 December 2003 * a letter, dated 27 August 2004, from DFAS * 7 sets of orders issued by Headquarters (HQ), DCNG * DD Form 214 with a separation date of 21 September 2006 * 5 sets of orders issued by Joint Forces Headquarters (JFHQ), DCNG * a memorandum, dated 24 April 2010, from JFHQ, DCNG * Army National Guard (ARNG) Current Annual Statement, prepared on 10 November 2009 * a memorandum for distribution, dated 9 February 2013, from JFHQ, DCNG * a memorandum, dated 28 February 2013, from JFHQ, DCNG * a memorandum, dated 7 March 2013, from JFHQ, DCNG * a memorandum, dated 6 September 2013, from JFHQ, DCNG * a memorandum, dated 12 December 2013, from JFHQ, DCNG * DD Form 214 with a separation date of 30 September 2014 * A letter, dated 20 May 2015, from DFAS CONSIDERATION OF EVIDENCE: 1. The applicant previously served in an enlisted status in the DCNG for 1 year, 3 month, and 10 days. 2. On 11 May 1990 the applicant was appointed a second lieutenant in the U. S. Army Reserve (USAR) and entered active duty on 8 March 1991. On 1 April 1995, she was promoted to captain (CPT)/pay grade O3. 3. On 15 April 2002, U.S. Total Army Personnel Command notified the applicant she was not selected for promotion to the next higher grade. A selection board convened to consider twice non-selected officers for continuation on active duty. The applicant was informed this board approved her for continuation on active duty for a 3-year period. If she declined continuation she was required to be discharged no later than 1 September 2002. 4. The applicant declined selective continuation on active duty and desired a reappointment for service in the Ready Reserve after her discharge from active duty. 5. On 1 September 2002, the applicant was released from active duty by reason of non-selection, permanent promotion and transferred to the 6th Medical Logistics Management Center (MLMC), Fort Detrick, MD. She completed 11 years, 5 months, and 24 days of active service. Her DD Form 214 with a separation date of 1 September 2002 indicates she was entitled to full involuntary separation pay in the amount of $69,282.72. 6. On 10 January 2003, the applicant was appointed a CPT in the DCNG. She was transferred to Operations Officer, District of Columbia Army National Guard. 7. Two SF 50-B's provided by the applicant show she was employed by the Department of Veterans Affairs (VA) as a GS-14, Management and Program Analyst on 23 March 2003. 8. On 30 September 2003, the applicant was appointed a Reserve commissioned officer of the Army in the grade of CPT with a date of rank (DOR) of 1 April 1995. She was to serve as a member of the Army National Guard with assignment to the Medical Services Branch. On 14 October 2003, she was granted Federal Recognition for initial appointment in the grade of CPT with a DOR of 1 April 1995. 9. On 30 October 2003, the applicant was promoted to major. 10. ABCMR Docket AR2008098009, dated 9 December 2003, recommended the applicant's DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes), 24 January 1992 be amended to indicate: * her service in the Army National Guard was also time served in the Simultaneous Membership Program * she served on active duty from 1 June through 25 July 1989 * her basic active service date was 13 January 1991 11. A letter, dated 4 March 2004, from DFAS to Headquarters, Army Personnel Center, Attention: LLS Total Army Personnel Command stated the change to the applicant's military records by the ABCMR would change the applicant's separation pay to $61,732.55 and add additional active duty of 55 days. DFAS requested that a corrected DD Form 214 be issued to reflect this correction of her records. 12. On 27 August 2004, A DD Form 215 (Correction to a DD Form 214) was issued correcting the applicant's separation pay shown as $69,282.72 to $61,732.66. 13. HQ, DCNG issued the following orders: * 196-070, dated 14 July 2004, ordering the applicant to active duty for special work (ADSW) from 13 July 2004 - 30 September 2004 * 201-015, dated 19 July 2004, amending the above period to 12 July 2004 - 30 September 2004 * 212-075, dated 30 July 2004, amending Order 196-070 to change her home of record * 274-012, dated 30 September 2004, ordering the applicant to ADSW from 1 October 2004 - 17 February 2005 * 048-039, dated 17 February 2005, ordering her to ADSW from 18 February 2005 - 30 September 2005 * 306-044, dated 2 November 2005, amending Order 278016, 5 October 2005, to change period of active duty to 1 October 2006 - 31 October 2006 * 308-007, dated 4 November 2005, ordering her to ADSW from 1 November 2005 - 30 September 2006 14. On 21 September 2006, the applicant was released from active duty by reason of completion of required active service. She completed 3 years, 2 months, and 9 days of active service that was characterized as honorable. 15. JFHQ, DCNG Orders 260-016, dated 17 September 2006, ordered the applicant to full-time National Guard duty in an AGR status for the period 22 September 2006 - 21 September 2009. 16. JFHQ, DCNG Orders 165-033, dated 14 June 2009, ordered the applicant to full-time National Guard duty in an AGR status from 22 September - indefinite. 17. A memorandum, dated 24 April 2010, from JFHQ, DCNG notified the applicant she had completed the required years of service for eligibility for retired pay upon application at age 60 (20-year letter). 18. A memorandum for distribution, dated 9 February 2013, from JFHQ, DCNG announced the District of Columbia would be convening a calendar year 2013 ARNG Enlisted AGR release from active duty (REFRAD)/ASMB. The ASMB was designed to review and select for retention the best qualified officers and warrant officers with 18 years or more of active service who fell within the zone of consideration. 19. A memorandum, dated 28 February 2013, from JFHQ, DCNG notified the applicant her records were scheduled for review by an ASMB to convene 4 June 2013. Only AGR Soldiers who have at least 18 years of active Federal service will be considered by the board. 20. A memorandum, dated 6 September 2013, from JFHQ, DCNG notified the applicant the AGR REFRAD Board/ASMB convened on 4 June 2013 and selected her for release from the AGR Program. 21. A memorandum, dated 12 December 2013, from JFHQ, DCNG notified the applicant the AGR REFRAD Board/ASMB convened on 6 June 2013 and selected her for release from the AGR Program. She was required to complete her transition out of the AGR no later than 30 September 2014. Her options were: * return to traditional drilling status * apply for retirement * transfer to the USAR * apply for active duty under the Officer/Warrant Officer Call to Active Duty Program 22. JFHQ, DCNG Orders 119-011, dated 29 April 2014, amended JFHQ Orders 165-033, dated 14 June 2009, to change the period of active duty to 22 September 2009 - 30 September 2014. 23. On 30 September 2014, the applicant was REFRAD and placed on the Retired List the following day. She completed 21 years, 8 months, and 10 days of total active Federal service. 24. A letter, dated 20 May 2015, from DFAS notified the applicant they would soon begin deduction from her retirement pay to recoup separation payments she received as a result of her previous separation from active duty. Federal law prohibits military member from receiving both separation pay and retired pay for the same period of service. a. Beginning with her payment dated 1 October 2015, DFAS deducted $1,893.20 from her retired pay to recoup the outstanding balance. b. The outstanding balance at the time was $69,282.92. c. DFAS provided the possible effects of the recoupment on other deductions in her retirement pay. DFAS also provided options for her if she felt the rate of recoupment would create a financial hardship on her. REFERENCES: Title 10, United States Code 1174 (10 USC 1174) states that a regular officer who is discharged and has completed six or more, but less than twenty years of active service immediately before that discharge is entitled to separation pay. However, a member who has received separation pay, severance pay, or readjustment pay under any provision of law, based on service in the armed forces, and who later qualifies for retired or retainer pay shall have deducted from each payment of such retired or retainer pay so much of such pay as is based on the service for which they received separation pay under this section or separation pay, severance pay, or readjustment pay under any other provision of law until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay received. DISCUSSION: 1. It is an individual's responsibility to exercise due diligence in order to make informative decisions concerning their career or a change in their career. 2. When the applicant was notified on 15 April 2002, she was not selected for promotion the second time she was also notified she had been selected for continuation on active duty for a 3-year period. She declined continuation and was required to be discharged no later than 1 September 2002. 3. The ASMB was designed to review and select for retention the best qualified officers and warrant officers with 18 years or more of active service. On the convening date of the ASMB the applicant had 20 years, 4 months, and 3 days of active Federal service. 4. Military service is cumulative. There are no provisions in law or regulation to restart creditable years of service for retirement when a member changes components or is discharged and later reenters military service. 5. Actions by DFAS to recoup her separation pay from her retired pay is appropriate based on 10 USC 1174. Whether it is fair (equitable) or just for the Government to have this recoupment provision in the law is not an issue the Board has the authority to address and there is no provision for the Board to circumvent the law requiring recoupment of separation pay based on the applicant's circumstances. 6. Based on the amendment to her military records recommended in ABCMR Docket AR2008098009, dated 9 December 2003, and the letter, dated 4 March 2004, from DFAS, a DD Form 215 was issued on 27 August 2004 correcting her separation pay to $61,732.66. The applicant should provide copies of these documents to DFAS to make any adjustments to the amount of separation pay being recouped from her retired 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) AR20150011269 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011269 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2