BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015653 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 BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015653 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. BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015653 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, two separate applications, correction of Headquarters, III Corps and Fort Hood, Orders 197-0238 to show he was medically discharged. 2. The applicant states: a. His orders show that he was medically discharged with severance pay but he paid it all back to the Department of Veterans Affairs (VA). He was discharged medically because of injuries he received in combat, and he was told that he had a medical discharge. b. The VA would only grant him pay if he first paid back the severance pay. He feels that if he was given severance pay, he should have been able to keep it. 3. The applicant provides: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 22 March 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 11 August 1997 * Headquarters, III Corps and Fort Hood, Orders 197-0238, dated 16 July 1997 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. On 29 August 1984, the applicant enlisted in the Regular Army for 3 years. He completed training as a cavalry scout. He remained on active duty through reenlistments. 3. On 16 July 1997, Headquarters, III Corps and Fort Hood, Orders 197-0238 were published reassigning the applicant to the U.S. Army transition point for discharge processing with an reporting date of 11 August 1997. The orders state that he was authorized disability severance pay in pay grade of sergeant based on 12 years, 11 months, and 13 days of service. The orders show he was awarded a service-connected disability rating of 20 percent. The orders also show his disability resulted from a combat-related injury. 4. On 11 August 1997, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(3), due to disability. His DD Form 214 shows he received severance pay in the amount of $41,544.00. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. 2. Title 10, U.S. Code, section 1212, states the amount of disability severance pay received under this section shall be deducted from any compensation for the same disability to which the former member of the armed forces or his dependents become entitled under any law administered by the VA. This statute was amended in 2008 to exclude from deduction any severance pay that was paid as a result of a combat-related disabling condition. The amendment was not retroactive. DISCUSSION: 1. The applicant's primary concern appears to be that his disability severance pay was deducted from his VA compensation. Deduction of disability severance pay from VA compensation is required by law. Beginning in 2008, severance pay received as a result of a combat-related disabling condition is no longer deducted from VA compensation. This provision of law was not retroactive. 2. A review of his discharge orders and his DD Form 214 show the appropriate entries were made on each document to reflect the circumstances under which he was discharged. Both documents clearly show he was discharged due to disability with 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) AR20150015653 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015653 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2