SAMR-RB 19 April 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR2050016015 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 28 March 2017, in which the Board members unanimously recommended denial of the applicant's request 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 1O, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by deleting the entry "SEPARATION PAY -- $19,297.04" from item 18 (Remarks) of the DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. The applicant should provide the VA a copy of this Record of Proceedings. 4. Request necessary administrative action be taken to effect the correction of records as indicated no later than 21 August 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl ----.. Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150016015 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: 28 March 2017 DOCKET NUMBER: AR20150016015 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: 28 March 2017 DOCKET NUMBER: AR20150016015 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, in effect, correction of the following items on his DD Form 214 (Certificate of Release or Discharge from Active Duty) in: a. Item 18 (Remarks), delete the entry "SEPARATION PAY -- $19,297.04"; b. Item 26 (Separation Code), change the code of "JBK" (Completion of Required Active Service); and c. Item 27 (Reentry Code), upgrade his code from RE-3 to a more favorable code. 2. The applicant states: a. He planned to join the Alaska Army National Guard subsequent to his separation, but he could not afford the plane ticket from Micronesia to Alaska due to financial difficulties. b. He failed to reenter the service to receive separation pay. c. The Department of Veterans Affairs (VA) scheduled compensation payments were affected. The VA recouped separation pay that he never received. This recoupment lasted about 18 months. He needs the above items corrected for him to receive the recouped VA compensation payments. 3. The applicant provides his DD Form 214 and three letters from the VA. 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 8 February 2001. His DD Form 214 shows he served in Iraq from 12 March 2003 to 27 January 2004, 3 February 2005 to 18 April 2006, and 15 May 2007 to 29 July 2008. 3. On 11 May 2014, the Army honorably discharged him 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 specialist/E-4. He completed 13 years, 3 months, and 4 days of net active service. His DD Form 214 shows the following information in: a. Item 18, the entry "SEPARATION PAY -- $19,297.04"; b. Item 25 (Separation Authority), he was discharged under the provisions of Army Regulation 635-200, chapter 4"; c. Item 26, he was assigned a separation code of "JBK"; d. Item 27, he was assigned a reentry code of 3; e. Item 28 (Narrative Reason for Separation), he was discharged by reason of completion of required active service. 4. His service record does not include evidence that indicates he signed a written agreement to serve in the Ready Reserve of a Reserve component for a period not less than 3 years after his discharge from active duty. 5. He provided a letter (first page), dated 8 September 2014 from the VA informing him of the decision involving his claim for additional benefits for his dependents. The letter shows the following information regarding separation pay: Total VA Benefit Amount Withheld Amount Paid Payment Start Date Reason $1,496.40 $1,005.18 $491.22 March 1, 2015 Recoupment of Separation Pay $1,496.40 $0.00 $1,496.40 April 1, 2015 Recoupment of Separation Pay 6. He provided a second letter (first page), dated 7 December 2015 from the VA informing him of the decision involving his claim for additional benefits for his dependents. The letter shows the following information regarding separation pay: Monthly Entitlement Amount Payment Start Date Total Withheld Net Reason for Change $1,642.71 December 1, 2014 $1,642.71 0.00 Recoupment of Separation Pay, Cost of Living Adjustment $1,642.71 February 1, 2015 $1,494.96 $147.75 Recoupment of Separation Pay $1,642.71 March 1, 2015 0.00 $1,642.71 Recoupment of Separation Pay 7. In a 9 August 2016 email, the Defense Finance and Accounting Service informed a staff member of the Army Review Boards Agency that the applicant’s Master Military Pay Account (MMPA) did not show entitlement to or payment of separation pay. REFERENCES: 1. 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 VA, 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. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) lists the specific authorities and reasons for separating Soldiers from active duty and the corresponding SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JBK" as the appropriate code to assign to enlisted Soldiers involuntarily released under the provisions of Army Regulation 635-200, chapter 4, based on completion of required active service. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment, reenlistment, and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of reenlistment eligibility (RE) codes and shows RE code 3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation. They are ineligible for reenlistment unless a waiver is granted. RE Code 1 applies to persons completing their term of service and who are considered fully qualified to reenter the Army. 4. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established the RE code of 3 as the proper RE code to assign Soldiers separated with an SPD code of JBK. DISCUSSION: 1. The applicant's service record shows he enlisted in the Regular Army on 8 February 2001 and he was discharged on 11 May 2014 (a period of 13 years, 3 months, and 4 days of net active service). 2. The applicant acknowledges that he failed to reenter the service to receive separation pay. Based on Title 10, USC, a Soldier 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 his discharge in order to be entitled to separation pay. 3. The applicant's service record is void of evidence and he did not provide sufficient evidence that indicates he was entitled to separation pay. However, item 18 of his DD Form 214 shows he was entitled to $19,297.04 in separation pay. 4. The applicant's MMPA history confirms he was not entitled to separation pay nor did he receive separation pay. He provides sufficient evidence that confirms he did not receive separation pay. It appears it would be appropriate to delete the entry from his DD Form 214 showing he was entitled to separation pay. 5. The evidence of record indicates the VA recouped separation pay from the applicant in December 2014, February 2015, and March 2015. 6. The applicant's discharge on 11 May 2014, by reason of completion of active service was accomplished in accordance with the applicable regulations. 7. The evidence shows the applicant was involuntarily discharged from the Regular Army. His DD Form 214 was annotated to show: a. He was honorably discharged; b. His discharge was in accordance with chapter 4, Army Regulation 635-200; c. His separation code is "JBK"; d. The narrative reason for discharge was, "Completion of Required Active Service." e. He was assigned an RE code of 3 8. The evidence of record shows the applicant received the appropriate separation and RE codes associated with his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016015 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016015 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2