IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150018065 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: 12 April 2016 DOCKET NUMBER: AR20150018065 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 cancelling the recoupment action and returning recouped funds to her. ____________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: AR20150018065 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 her 2006 disability separation orders to show she did not receive severance pay in the amount of $11,615.40. 2. The applicant states she did not receive severance pay when she was released from the U.S. Army Reserve (USAR) in 2006. Her military retired pay is being garnished to recoup monies that she did not receive. 3. The applicant provides a letter from the Defense Finance and Accounting Service (DFAS) to her Member of Congress. 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 USAR for 8 years on 26 January 2002. She entered active duty for training on 23 April 2002 and completed training for award of military occupational specialty 31U (Signal Support Systems Specialist). 3. She was honorably released from active duty on 21 November 2002 and transferred back to her troop program unit, the 403rd Civil Affairs Battalion, Mattydale, NY. 4. She entered active duty on 14 February 2003 in support of Operation Iraqi Freedom and subsequently served in Kuwait/Iraq from 22 March 2003 to 22 March 2004. 5. She was honorably released from active duty on 11 May 2004 by reason of completion of her required active service. She was credited with 1 year, 2 months, and 28 days of active service. 6. On 12 May 2006, a medical evaluation board (MEB) considered her clinical records and physical examinations, and determined she had a medical condition that failed retention standards (post-traumatic stress disorder). The MEB recommended referral to a physical evaluation board (PEB). She agreed. 7. On 11 September 2006, an informal PEB convened and determined the applicant’s medical condition rendered her unfit and recommended separation with entitlement to severance pay in the amount of 10 percent. She did not concur. 8. On 25 October 2006, a formal PEB convened and determined her medical condition rendered her unfit and again recommended separation with entitlement to severance pay in the amount of 10 percent. 9. On 8 December 2006, the U.S. Army Physical Disability Agency (USAPDA) published Orders D342-02 that directed her discharge by reason of physical disability and authorized her severance pay in pay grade E-4 based on 4 months and 12 days of service as computed under Title 10, U.S. Code (USC), section 1208. 10. On 7 August 2007, the USAPDA published Orders D220-01 amending Orders D342-02 to show she was authorized severance pay in pay grade E-4 based on 2 years, 7 months, and 23 days of service as computed under Title 10, USC, section 1208. 11. On 6 June 2012, the USAPDA revoked Orders D342-2, dated 8 December 2006, pertaining to her disability. On the same date, the USAPDA published Orders D158-04 placing her on the temporary disability retired list (TDRL) with a 50 percent disability rating, effective 23 December 2006. 12. On 7 June 2012, the USAPDA published Order D159-02 removing her from the TDRL on 22 June 2007 and permanently retiring her in the rank of E-4 at a 50 percent disability rate. 13. On 12 August 2015, in a letter to her Member of Congress, a DFAS official stated that after they reviewed her records, DFAS officials were unable to locate proof of her severance pay disbursement. DFAS used her orders showing authorization for severance pay to recoup her military pay. She was advised of two options: * she may petition the Board for correction of her military records to show she was not authorized severance pay; if her decision is favorable, all monies recouped will be refunded * she may file a claim with DFAS requesting payment of severance pay (with a waiver of the Barring Statute), 14. An advisory opinion was received from the Office of the Deputy Chief of Staff, G-1 on 16 February 2016 in the processing of this case. An advisory official stated that after a review of and in coordination with the applicant, the Army G-1 determined her request warrants approval. DFAS, the official system of record for pay, determined that they could not locate any proof of the applicant's severance pay disbursement and as a result, DFAS is directing the immediate stoppage of all recoupment action that pertains to the severance pay in question and a refund of all monies collected on the recoupment. 15. The applicant was provided a copy of this advisory opinion but she did not respond. REFERENCES: 1. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. When a DD Form 214 is issued, Block 18 (Remarks) is used for Department of the Army mandatory requirements when a separate block is not available. For a Soldier receiving severance, readjustment, or non-disability severance pay (as indicated by the finance office), enter type of pay and amount. This guidance was later clarified to ensure transition points were entering the gross amount of severance pay. 2. Army Regulation 600-8-105 (Military Orders) prescribes policies and mandated tasks governing military orders as a multifunctional program. Order Format 500 pertains to discharge from all status or discharge from the Regular Army while under dual component enlistment option. Use Format 500 when the Soldier is being discharged without being reassigned for separation processing. When disposition instructions from the Commanding General, U.S. Army Human Resources Command contain information pertaining to disability severance pay, include the following statement: "You are authorized disability severance pay in pay grade” (enter pay grade) "based on" (enter number) "years," (enter number) "months," (enter number) "days of service as computed under section 1208, section 10, U.S. Code" (10 USC 1208). 3. Department of Defense Instruction 1340.21 (Procedures for Settling Personnel and General Claims and Processing Advance Decision Requests) implements policy and prescribes procedures for processing and settling personnel and general claims and processing requests for an advance decision. a. Paragraph E5.6 states a claimant must submit a claim so that it is received by the Component concerned within the time limit allowed by statute. b. Paragraph E5.6.1.2 states claims under Title 31, USC, section U3702(b) must be received within 6 years of the date the claim accrued. A claim accrues on the date when everything necessary to give rise to the claim has occurred. The time limit for claims of members of the Armed Forces that accrue during war or within 5 years before war begins, is 6 years from the date the claim accrued or 5 years after peace is established, whichever is later. c. Paragraph E.5.7 states the claimant must prove, by clear and convincing evidence, on the written record that the United States is liable to the claimant for the amount claimed. All relevant evidence to prove the claim should be presented when a claim is first submitted. In the absence of compelling circumstances, evidence that is presented at later stages of the administrative process will not be considered. DISCUSSION: 1. The evidence of record shows the applicant was discharged by reason of physical disability with entitlement to severance pay on 23 December 2006. Her orders initially stated that she was authorized severance pay in pay grade E-4 based on 4 months and 12 days of service as computed under Title 10, USC, section 1208. These orders were then amended to show she was authorized severance pay in pay grade E-4 based on 2 years, 7 months, and 23 days of service as computed under the same law. 2. The USAPDA revoked those orders in 2012 and issued new orders affecting her retirement by reason of temporary disability effective 23 December 2006 and later permanent retirement effective 22 June 2007. 3. DFAS audited her pay records and documented that officials could not locate any proof of the applicants' severance pay disbursement. DFAS provided her two options: petition this Board for correction of her records or submit a claim requesting payment of her authorized severance pay. 4. This Board is normally the appropriate remedy to correct her military records. However, the single document that could be corrected to show she did not receive severance pay (USAPDA Orders D342-02) has been revoked and is no longer valid. An alternative remedy in her case is to correct her records by cancelling the recoupment action and returning the recouped funds to her. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018065 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018065 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2