BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160003754 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: 19 December 2017 DOCKET NUMBER: AR20160003754 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: 19 December 2017 DOCKET NUMBER: AR20160003754 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 his military records by showing he met the requirements to receive full separation pay. He further requests to personally appear before the Board. 2. The applicant states that pursuant to Department of Defense Instruction (DODI) 7000.14-R, Volume 7A, Chapter 35, Separation Payments, he met the requirements to receive full separation pay. Additionally, Army National Guard (ARNG), Title 10 U.S. Code, Active Guard Reserve (AGR) Mandatory Removal Date (MRD) Guide for fiscal year (FY) 2014/2015, Second Edition, Chapter 2-3.a, dated 2 December 2013, states the rules for his separation which is in accordance to DODI 7000.14-R. He contends that he was entitled to receive military separation compensation/pay upon his release from Active Duty on 30 June 2014, per Orders 51-22, until the National Guard Bureau (NGB) issued Orders 120-18, unjustly revoking such entitlement. That order provoked the amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a DD Form 215 (Correction to DD Form 214) cancelling the pay. A month after his separation, the NGB issued Orders 216-6 revoking the previous orders, which in turn makes him entitled to the separation pay once again. 3. The applicant provides: * ARNG Title 10 AGR MRD Guide, dated 2 December 2013 (9 pages) * Orders 51-22, NGB, dated 20 February 2014 * Email communication between the ARNG and the applicant, dated 16 April 2014 (2 pages) * DA Form 4187 (Personnel Action), Military Service Agreement, dated 23 April 2014 * Transition Section Notice of appointment, dated 24 April 2014 * Orders 120-18, NGB, dated 30 April 2014 * Army Times article, “Soldiers Denied $15 Million in Separation Pay,” dated 14 July 2014 (3 pages) * Email communications between Inspector General and NGB, dated 22 to 25 July 2014 (3 pages) * Order 216-6, NGB, dated 4 August 2014 * Orders 230-002, District of Columbia (DC) ARNG, dated 18 August 2014 * DD Form 214, ending on 30 June 2014 * DD Form 215, correcting DD Form 214 ending on 30 June 2014 CONSIDERATION OF EVIDENCE: 1. At the time of his application, the applicant stated he was a major, pay grade O4 in the Retired Reserve. 2. Records indicate the applicant entered active duty on 6 September 2005. He was subsequently promoted to major, pay grade O4, Infantry, ARNG, effective on 21 December 2005. 3. In a memorandum, dated 14 July 2008, the applicant was notified of his eligibility for retired pay at 60 years of age, based on his completion of 20 years of qualifying military service. 4. In a memorandum from the Chief, Human Capital Management Division, NGB, dated 9 September 2013, the applicant was informed that his MRD of 30 June 2018 was incorrect. The records error was due to his two non-selections for promotion, with selective continuation status, not being properly filed in his personnel records. His MRD, as corrected was stated as 30 June 2014. He was also informed that should he be selected for promotion, his MRD would be returned to reflect authorization for 28 years of commissioned service. The applicant indicated his acknowledgement on 25 September 2013. 5. The ARNG Title 10 AGR MRD Guide, as provided by the applicant, contains the basic rules for making MRD calculations. It provides that majors who are Department of the Army (DA) non-selected for promotion twice and subsequently continued are removed from the reserve active-status list (RASL) on the last day of the month in which the officer completes 24 years of commissioned service. Majors who are not selectively continued will be removed on the last day of the month after the month they complete 20 years of commissioned service. Otherwise, these officers will be removed on the first day of the 7th month in which the President approves the board report, whichever is later. 6. Orders 51-22, paragraph 2, NGB, dated 20 February 2014, announced the applicant’s reattachment to the U.S. Army transition point for transition processing. His report date to the transition point was 29 June 2014. After processing he was to be immediately released from active duty. His date of release from active duty (REFRAD) was to be 30 June 2014. The additional instructions stated he was entitled to full separation pay. 7. On 14 April 2014, the applicant submitted a DA Form 4187 wherein he agreed to serve in the Ready Reserve for 3 years in order to receive separation pay. The form was verified on 23 April 2014. 8. An email communication, as provided by the applicant, from the Office of Personnel Management (OPM), dated 16 April 2014, DCARNG, states that the applicant would not be assigned to the USAR in an inactive status. Because of Federal law, he could only be transferred to the USAR Retired if he has 20 or more qualifying years of service. Because he was a two time non-select for promotion and was recommended for selective continuation, law permitted him to serve for no more than 24 years of commissioned service. The email further stated that separation pay is based on the years of active duty and involuntary release. His qualification for separation pay was conditioned on his serving 3 years in the Ready Reserve. 9. A statement, dated 24 April 2014, as provided by the applicant, indicates the applicant had a finance appointment on the same day. His full separation pay was stated as $116,234.28 before taxes. Accrued leave was paid for 36.5 days. 10. Orders 120-18, NGB, dated 30 April 2014, amended Orders 51-22, as discussed in paragraph 6 above, by changing the statement reading he was entitled to full separation pay to read as he was not entitled to separation pay. 11. The Army Times article provided by the applicant tells the story of how hundreds of soldiers were erroneously denied separation pay. The article stated that by law, Soldiers must commit to serve at least 3 years in a Ready Reserve in order to receive involuntary separation pay. 12. In an e-mail communication dated 22 July 2014, the applicant requested information from the NGB Inspector General’s Office, concerning separation compensation pay. a. On 25 July 2014 he received a response that informed him of the history concerning the payment of separation pay. In part, it told him that in later December 2013 the ARNG began having issues with the payment of separation pay for those ARNG Soldiers who were out-processing through Army Transition Centers. By late March the number and scope of these issues had reached a critical stage and a teleconference was held with NGB, DFAS and the Army G1. As a result, it was determined that the Army G1 did not support the payment of separation pay for ARNG officers separated for MRD or with 20 year Notice of eligibility letters. Due to their guidance, orders were amended to remove the remark stating eligibility for separation pay. b. In May 2014, an Army directive was published stating that Reserve Component soldiers with a 20 Year Letter were not eligible for separation pay. The Army G1 directed DFAS to not pay Title 10 or Title 32 AGR Soldiers who were separating with a 20-Year Letter. c. In June 2014, the NGB met with the Assistant Secretary of the Army (ASA), Manpower and Reserve Affairs (M&RA) to request assistance with this issue. ASA (M&RA) representatives later met with the DA Judge Advocate General and the Army G1. Progress was slow on the cases that were not paid since the beginning of 2014. They were in the process of amending separation orders to restore the eligibility statement. However, having the statement on the order is no guarantee of payment, it was just one step in assisting soldiers in gaining the benefit. 13. Order 216-6, NGB, dated 4 August 2014, revoked so much of Orders 120-18, NGB, dated 30 April 2014 wherein the eligibility statement for separation pay had been removed from Orders 51-22, paragraph 2, NGB, dated 20 February 2014. 14. DD Form 214, as corrected by DD Form 215, issued to the applicant for his period of active duty ending on 30 June 2014, reports that he had completed 13 years and 20 days of active duty service and had 13 years, 2 months and 12 days of inactive duty, totaling 26 years, 3 months and 2 days of military service. 15. Orders 230-002, DCARNG, dated 18 August 2014, announced the applicant’s separation from the ARNG effective 30 June 2014 and transfer to the Retired Reserve. 16. In the processing of this case, an advisory opinion was obtained from the chief, compensation and Entitlements Division, Office of the Deputy chief of Staff, G-1, Department of the Army, wherein the following was provided: a. After a careful review, the Army G-1 determined the applicant was not entitled to separation pay in accordance with Title 10, U.S. Code, section 1174 and DODI 1332.29. b. On 5 August 2014, Army lawyers rendered a legal opinion and determined that AGR Soldiers removed from the RASL for years of service are not eligible for separation pay in accordance with Title 10, U.S. Code, section 1174. That determination has since been captured in Army Regulation 637-2, Table 2-2, rule 2 as a limitation on eligibility for separation pay. The applicant twice failed selection for promotion to the grade of lieutenant colonel. He was offered and accepted selective continuation and served until his MRD. He was removed from the RASL, under Title 10, U.S. Code, section 14514. He was separated in accordance with Army Regulation 600-8-24, paragraph 2-23. Title 10, U.S. Code, section 14516 considers such separation as involuntary and section 14517 entitles the officers to separation pay if eligible under section 1174. c. However, not all officers who are separated under section 14514 are eligible for separation pay under section 1174. Section 1174 references “discharged” officers. Officers who are separated under section 14514 and transferred to the Retired Reserve are not included because they are not being discharged. Consequently, an officer in this category, to include the applicant in this case, is not entitled to receive separation pay. 17. On 18 October 2017, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. DISCUSSION: 1. The applicant contends that his military records should be corrected to show he is entitled to receive full separation pay because he met the requirements for such pay. He further requests to personally appear before the Board. 2. The applicant requested a personal appearance before the Board; however, because there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted. If the applicant is not satisfied with the results of the informal Board hearing, he may request reconsideration and provide new evidence that was not previously considered by the Board. 3. In this case, the applicant was separated from active duty as a result of his being non-selected for promotion and reaching his MRD of 30 June 2014. Because he had attained 20 or more qualifying years of service, he is entitled to receive retired pay at age 60. Accordingly, he was transferred to the Retired Reserve. 4. However, not all officers who are separated under section 14514 are eligible for separation pay under section 1174. Section 1174 references “discharged” officers. Officers who are separated under section 14514 and transferred to the Retired Reserve are not included because they are not being discharged. Consequently, an officer in this category, to include the applicant in this case, is not entitled to receive separation 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) AR20160003754 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003754 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2