IN THE CASE OF: BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20150013443 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20150013443 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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: a. Showing the applicant timely submitted a DA Form 4187 (Personnel Action) entering into a written agreement to serve in the Ready Reserve of a reserve component for a period of not less than 3 years. b. Amending his separation orders and DD Form 214 to show entitlement to half separation pay under the provisions of Title 10, U.S. Code, section 1174. d. Paying him all separation pay he is due as a result of these corrections. _____________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: 3 November 2016 DOCKET NUMBER: AR20150013443 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 payment of separation pay in the amount of $39,000. 2. The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he would receive half separation pay in the amount of $39,000. He did not receive this pay and the finance office he cleared from told him that he would have to file an appeal in order to receive this pay. He was discharged from active duty in 2015 under the Qualitative Management Program (QMP). He was told that he did not receive this pay because he needed to obtain a DA Form 4187 (Personnel Action) stating that he was ineligible for Reserve or National Guard duty. He was able to get the form and return it to finance but they told him that it was signed after his last day in the military. He was discharged as a result of the QMP and does not qualify for Reserve duty anyway. He just wants this rectified because his family and he have been planning on using this money and seriously need it. 3. The applicant provides: * DA Form 137-2 (Installation Clearance Record) * Enlisted Record Brief * DD Form 214 * separation orders CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 10 June 1999 and he held military occupational specialty 25U (Signal Support Systems Specialist). 2. He served through multiple reenlistments, in a variety of stateside or overseas assignments, and attained the rank/grade of sergeant first class (SFC)/E-7. 3. As a result of derogatory information in his personnel file, he was considered but not selected for retention by the QMP. His discharge was directed no later than July 2015. 4. On 20 April 2015, Headquarters, U.S. Army Cyber Center, Fort Gordon, GA, published Orders 118-0904 ordering him to report to the Transition Center for separation processing on 19 July 2015. Among the additional instructions noted in the order is the statement, ?Soldier is entitled to half separation pay [in accordance with Title] 10 [U.S. Code, section] 1174.? 5. He was honorably discharged on 19 July 2015. His DD Form 214 shows he completed 16 years, 1 month, and 10days of active service. It also shows in: * Item 9 (Command to which transferred), not applicable * Item 18 (Remarks), Separation Pay $39,806.25 * Item 26 (Separation code), JGH * Item 27 (Reentry (RE) code), RE-4 * Item 28 (Narrative reason for separation), non-retention on active duty 6. On 2 October 2015, Headquarters, U.S. Army Cyber Center, Fort Gordon, GA, published Orders 275-0900, amending Orders 118-0904, dated 20 April 2015, deleting the statement pertaining to separation pay. 7. On 5 October 2015, the applicant was issued a DD Form 215 (Correction to DD Form 214) that deleted from item 18 the entry that reads "Separation Pay $39,806.25" and "Member is entitled to half separation pay." REFERENCE: Title 10, U.S. Code, section 1174 (Separation pay upon involuntary discharge or release from active duty) states in: a. Sub-paragraph (b)(1), a regular enlisted member of an armed force who is discharged involuntarily or as the 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 computed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay; (2) separation pay of an enlisted member shall be computed under paragraph (1) of subsection (d), except that such pay shall be computed under paragraph (2) of such subsection in the case of a member who is discharged under criteria prescribed by the Secretary of Defense. b. Sub-paragraph d, the amount of separation pay which may be paid to a member under this section is 10 percent of the product of (A) his years of active service, and (B) 12 times the monthly basic pay to which he was entitled at the time of his discharge or release from active duty; or (2) one-half of the amount computed under clause (1). c. Sub-paragraph e (requirement for service in Ready Reserve, Exception to eligibility): (1)(A) 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 3 years following the person’s discharge or release from active duty. If the person has a service obligation under section 651 of this title or under any other provision of law that is not completed at the time the person is discharged or released from active duty, the 3-year obligation under this subsection shall begin on the day after the date on which the person completes the person’s obligation under such section or other provision of law; and (1)(B), each person who enters into an agreement referred to in subparagraph (A) who is not already a Reserve of an armed force and who is qualified shall, upon such person’s discharge or release from active duty, be enlisted or appointed, as appropriate, as a Reserve and be transferred to a reserve component. (2) A member who is discharged or released from active duty is not eligible for separation pay under this section if the member (A) is discharged or released from active duty at his request; (B) is discharged or released from active duty during an initial term of enlistment or an initial period of obligated service, unless the member is an officer discharged or released under the authority of section 647 of this title; (C) is released from active duty for training; or (D) upon discharge or release from active duty, is immediately eligible for retired or retainer pay based on his military service. DISCUSSION: 1. The applicant was involuntarily discharged from active duty under the QMP. He was appropriately assigned separation code "JGH" and RE-4. As a result, he was ineligible to reenter the Army or another component of the armed forces. He completed 16 years, 1 month, and 10 days of active duty. 2. Because he was discharged under criteria prescribed by the Secretary of Defense and/or Secretary of the Army, he was entitled to half separation pay. However, as a condition of receiving separation pay, an eligible enlisted member is required to enter into a written agreement to serve in the Ready Reserve of a reserve component for a period of not less than 3 years following the member's discharge or release from active duty. 3. It is clear that the requirements to receive such pay were not conveyed to the applicant and as such, he did not timely submit a DA Form 4187 prior to his date of discharge. Had he done so on time, he would not be submitting his petition to this Board. He should not be penalized for an administrative error that may have been committed by others. A review of the statutory requirements for separation pay shows he met the requirements. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013443 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013443 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2