BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160004933 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 BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160004933 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 paying him full non-disability separation pay. ____________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 June 2016 DOCKET NUMBER: AR20160004933 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 through a remand from the U.S. Court of Federal Claims, dated 12 February 2016: * full separation pay * a written agreement for service in the U.S. Army Reserve (USAR) for a minimum period of 3 years 2. The applicant concurred with the remand and states: a.  He was allotted severance pay due to his number of years in the service and for agreeing to serve in the Individual Ready Reserve. On 13 July 2014, Ms. S____, the Chief of the Transition Center, sent his paperwork to the Defense Finance and Accounting Service (DFAS) for processing. Ms. S____ advised him after his separation that the finance office at Joint Base McGuire-Dix-Lakehurst, Fort Dix, NJ, required a DA Form 4187 (Personnel Action). b.  Captain R____ sent him the DA Form 4187, which he gave to Ms. S____, who in turn forwarded it to the finance office at Fort Dix. c.  Ms. G____, from the finance office at Fort Dix, told him it would take 30 days after his final out-processing to receive his separation pay. She later told him he would not be receiving any separation pay without applying to the Army Board for Correction of Military Records (ABCMR). d.  Ms. G____ explained that Mr. C____, a military pay technician at DFAS, had been on leave for 2 weeks and that was likely the reason finance did not notify the Transition Center of the required DA Form 4187 prior to his separation date. She could not explain why this stopped his separation pay. e.  There are multiple issues with why he was not given his separation pay: (1)  Title 10, U.S. Code (USC), section 1174 (Separation Pay upon Involuntary Discharge or Release from Active Duty), does not mention stopping a Soldier's separation pay for a DA Form 4187, but the Soldier must apply in writing for entry into the Individual Ready Reserve (should read Ready Reserve). (2)  The ABCMR is to correct inaccuracies in a service member's or former service member's record. This has nothing to do with why Mr. C____ is denying his separation pay. (3)  A DA Form 4187 was requested by Mr. C____'s office after his separation date. He questions why it was explicitly requested by DFAS toward Ms. S___ if it did not serve a purpose in reference to processing his severance pay. (4)  Mr. C____ has currently affected three other Soldiers in this exact manner. 3. The applicant provides through the remand: * Military Pay E-Message 14-018, corrected 22 May 2014, subject: Requirements for the Release of Full/Half Involuntary Separation Pay * All Army Activities (ALARACT) Message 054/2015, dated 27 March 2015, subject: Clarification of the Statute and Department of Defense (DOD) Policy for Involuntary Separation Pay Entitlement * Headquarters, U.S. Army Human Resources Command (HRC), Fort Knox, KY, memorandum, dated 25 March 2015, subject: Notification of Separation Due to Non-Selection for Promotion * self-authored memorandum, dated 3 June 2014, subject: Request for Active Duty Waiver for Reserve Commission * HRC memorandum, dated 20 June 2014, subject: Request for USAR Commission * email * Headquarters, Army Support Activity, Joint Base McGuire-Dix-Lakehurst, Orders 188-0002, dated 7 July 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 October 2014 * DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters, and/or Variable Housing Allowance, dated 27 October 2014 * DA Form 31 (Request and Authority for Leave) for the period 2 July 2014 through 1 October 2014 * Separation/Retirement Information Sheet, dated 20 June 2014 * Separation/Retirement Checklist, dated 20 June 2014 * Separation Pay Worksheet * two DA Forms 4187 * self-authored request for Congressional assistance, undated * DFAS letter, dated 23 January 2015 * DFAS Internal Review Criminal Investigation Branch memorandum, dated 2 April 2015 * DFAS letter, dated 24 April 2015 * Court Summary CONSIDERATION OF EVIDENCE: 1. Having prior honorable enlisted service in the Army National Guard, the applicant was appointed as a commissioned officer in the rank of second lieutenant on 4 May 2002 in the Regular Army. 2. He was promoted to first lieutenant on 1 December 2003 and he was promoted to captain on 1 September 2005. 3. On 27 October 2010, he was considered and recommended for promotion to major by the Fiscal Year (FY) 2011 Major, Army, Maneuver, Fires and Effects, Operational Support, Force Sustainment, Promotion Selection Board. 4. On 14 December 2010, he received a general officer memorandum of reprimand (GOMOR) which was locally filed. He received the GOMOR for: * being grossly negligent in his administration of his property accountability responsibilities as a company commander * using improper means to compel subordinates to sign for property * improperly signing inventories when such inventories were not conducted * failing to report for duty as instructed by his brigade commander during the period 22-24 November 2010 5. On 11 April 2011, he was notified of a referred DA Form 67-9 (Officer Evaluation Report (OER)) for the period 11 June 2010 through 30 September 2010 and he was given an opportunity to submit matters in his own behalf. 6. On 2 May 2011, he signed the referred OER and he submitted statements in his own behalf. 7. The referred OER was filed in his Official Military Personnel File on 28 December 2011. 8. On 19 January 2012, he was notified his records were referred to a Promotion Review Board based on the referred OER for the period 11 June 2010 through 30 September 2010 that was processed after the convening date of his promotion selection board. He was given a suspense date of 2 February 2012 to submit matters in his own behalf. He was also notified the Promotion Review Board would recommend to the Secretary of the Army, one or more of the following: * that he be retained on the promotion list * that his name be removed from the promotion list * that he show cause for retention on active duty 9. On 19 January 2012, he submitted matters in his own behalf to the Promotion Review Board. 10. On 16 February 2012, the Officer Special Review Board denied his appeal of the referred OER for the period 11 June 2010 through 30 September 2010. 11. On 7 March 2012, a board of officers convened at the Department of the Army Secretariat for Selection Boards, Fort Knox, KY, to consider the applicant's promotion. 12. On 8 March 2012 after reviewing his overall record, the Promotion Review Board determined that his overall performance as demonstrated in his file warranted removal from the FY11 Major, Army, Maneuver, Fires and Effects, Operational Support, Force Sustainment, Promotion Selection Board. The Promotion Review Board recommended removal of his name from the promotion list. 13. On 25 June 2012, the Secretary of the Army directed removal of the applicant's name from the FY11 Major, Army, Maneuver, Fires and Effects, Operational Support, Force Sustainment, Promotion Selection Board promotion list. 14. On 29 June 2012, the applicant was notified his name was removed from the FY11 Major, Army, Maneuver, Fires and Effects, Operational Support, Force Sustainment, Promotion Selection Board promotion list. 15. On 3 January 2013, the applicant's counsel at the time appealed the referred OER for the period 11 June 2010 through 30 September 2010. 16. On 29 January 2013, his appeal of the referred OER was returned without action due to insufficient evidence. 17. On 27 July 2013, the applicant's counsel at the time appealed to the ABCMR for removal of the referred OER for the period 11 June 2010 through 30 September 2010 and his retroactive promotion to major. 18. On 25 March 2014, the applicant was notified of his separation due to non-selection for promotion. He was advised his effective date of separation would be 1 October 2014 with entitlement to separation pay, if eligible for such pay, as provided by the DOD Military Pay and Allowances Entitlements Manual. 19. On 2 May 2014, the Senior Lead, Officer Eliminations and Special Actions, notified the Commander, HRC, of the applicant's involuntary discharge or involuntary transfer and he requested issuance of separation orders to the applicant. The following information was provided, in part: a.  The separation was the result of the FY14 Major Army Competitive Category Promotion Selection Board. The effective date of involuntary separation in accordance with Title 10, USC, section 611A, and Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 5-9(d) and (g), was 1 October 2014 provided it was not in contravention with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions). b.  His separation orders (format 500 or 501, as appropriate) were to show an honorable discharge with separation program designator (SPD) code JGB. A waiver had to be approved prior to transfer to the USAR. The SPD code LGB was to be used if a waiver was approved. c.  He may have been authorized separation pay according to DOD Financial Management Regulation, volume 7A, chapter 35. As a condition of receiving separation pay, he had to request an appointment in the USAR for a period of not less than 3 years in accordance with Title 10, USC, section 1174. Permissive temporary duty was authorized per Army Regulation 600-8-10 (Leaves and Passes), paragraph 5-35(d)(4). d.  He did not have an active duty service obligation or a military service obligation. e.  He intended to continue service in the USAR and he had to have an approved non-select waiver prior to his separation. f.  He was not authorized to separate with pre-separation counseling and completion of a DD Form 2648 (Pre-separation Counseling Checklist). 20. On 6 May 2014, the ABCMR denied the request for removal of the referred OER for the period 11 June 2010 through 30 September 2010 and retroactive promotion to major. 21. On 3 June 2014, he submitted a request for an active duty waiver for a Reserve commission. 22. Headquarters, Army Support Activity, Joint Base McGuire-Dix-Lakehurst, Orders 170-0008, dated 19 June 2014, show, in part: * his date of release from active duty as 1 October 2014 * he was entitled to full separation pay in accordance with Title 10, USC, section 1174 23. On 20 June 2014, the applicant was notified his request for a waiver to serve in the USAR was denied. 24. Headquarters, Army Support Activity, Joint Base McGuire-Dix-Lakehurst, Orders 188-0001, dated 7 July 2014, rescinded Orders 170-0008, dated 19 June 2014. 25. Headquarters, Army Support Activity, Joint Base McGuire-Dix-Lakehurst, Orders 188-0002, dated 7 July 2014, show: * his date of date of discharge as 1 October 2014 * he was entitled to full separation pay in accordance with Title 10, USC, section 1174 26. On 1 October 2014, he was honorably discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: a.  item 18 (Remarks), "REFRAD [RELEASE FROM ACTIVE DUTY] PURSUANT TO UNQUALIFIED RESIGNATION CONSTITUTES OFFICER'S ACCEPTANCE AS A RESERVE COMMISSIONED OFFICER. NO OATH IS REQUIRED IAW [IN ACCORDANCE WITH] [TITLE] 10 U.S.C. [SECTION] 12201(A)(2) AND DOD POLICY.…MEMBER IS ENTITLED TO FULL INVOLUNTARY SEPARATION PAY"; b.  item 23 (Type of Separation), Discharge; c.  item 24 (Character of Service), Honorable; d.  item 25 (Separation Authority), Army Regulation 600-8-24, paragraph 5-9; e.  item 26 (SPD Code), JGB; and f.  item 28 (Narrative Reason for Separation), Non-Selection, Permanent Promotion. 27. He provided the following documents in support of his request: a.  Military Pay E-Message 14-018, corrected 22 May 2014, subject: Requirements for the Release of Full/Half Involuntary Separation Pay, provided instructions to defense military pay offices, financial management support units, U.S. property and fiscal offices, USAR pay centers, and DFAS employees instructions on the requirements for the release of full/half involuntary separation pay. This message stated, in part: (1)  If the separation date of the Soldier had passed and there was no written agreement already signed, the separation pay was no longer authorized and the Soldier had to apply to the ABCMR. (2)  In order to receive separation pay, the Soldier had to agree to serve in the Ready Reserve of a Reserve Component of the Armed Forces for a period of not less than 3 years following separation from active duty. (3)  The Army did not have a written agreement in place prior to 31 January 2014. A DA Form 4187 was used for separations from 31 January to 28 February 2014 and it was the only acceptable document on or after 1 March 2014. (4)  The DA Form 4187 had to have specific verbiage which included "…If it is determined that I am not qualified for appointment or enlistment in the Ready Reserves, I will not be enlisted or appointed by the Military Service concerned and will be considered to have met this condition of eligibility for separation pay." (5)  The written agreement had to be signed by the service member and the Reserve Career Counselor or other official authorized to contract the Soldier into the Ready Reserve on or prior to the separation date. b.  ALARACT Message 054/2015, dated 27 March 2015 with an expiration date of 19 March 2016, provided clarification of the statute and DOD policy on involuntary separation pay to allow for the timely processing of the entitlement prior to the Soldier's discharge or release from active duty. This message also stated: (1)  Soldiers eligible for involuntary separation pay had to enter into an agreement with the Army to serve a minimum of 3 years in the Ready Reserve of Reserve Component in one of the military services, plus any other unexpired military service obligation. There were no exceptions. (2)  Soldiers eligible for the separation pay could obtain a service agreement from a Reserve Component Career Counselor at the installation. The agreement was to be on a DA Form 4187 and both the Soldier and the Reserve Component Career Counselor had to sign the agreement. (3)  Both the SPD code on the DD Form 214 or DD Form 215 (Correction to DD Form 214) and the military separation order had to have the same authorized separation entitlement pay level of half or full in order for DFAS to legally disburse the payment. c.  A Separation/Retirement Checklist with a separation pay worksheet, dated 20 June 2014, shows he was given a separation/retirement briefing and he was provided a separation figure amount of $98,317.44. d.  Email regarding his separation pay and DA Form 4187 shows coordination between the finance office at Fort Dix and DFAS. e.  A DA Form 4187, dated 2 May 2014, shows he acknowledged the requirements for receiving separation pay and he acknowledged the form would not become a written agreement for the purpose of separation pay according to Title 10, USC, section 1174, and DODI 1332.29, paragraph 3.1.4, unless it was endorsed by a Ready Reserve Career Counselor or other official authorized to contract Soldiers into the Ready Reserve certifying he was eligible for such service. The form shows it was signed by Captain (now Major) O____ A. H____. f.  A DA Form 4187, dated 21 October 2014, shows he acknowledged the form would not become a written agreement for the purpose of separation pay according to Title 10, USC, section 1174, and DODI 1332.29, paragraph 3.1.4, unless it was endorsed by a Ready Reserve Career Counselor or other official authorized to contract Soldiers into the Ready Reserve certifying he was eligible for such service. The signature of the authorized individual is illegible. g.  A Congressional response from DFAS, dated 23 January 2015, explained the requirements for full separation pay and shows he was directed to the ABCMR. 28. He also provided a memorandum from the DFAS Internal Review Criminal Investigations Branch, dated 2 April 2015, subject: Management Advisory Report 2015-DICIB-XXXX (RE: Applicant), which states: a.  On 31 October 2014, the Fort Dix Finance Office notified the applicant that there was no DA Form 4187 on file and that he would not be entitled to separation pay unless he obtained a favorable decision by the ABCMR. b.  The applicant submitted multiple Congressional inquiries and he included a statement in which he requested his separation pay and he admitted there was no DA Form 4187 on file prior to his separation date. c.  He submitted a DA Form 4187 which was signed 5 months prior to his separation date. The Assistant Special Agent in Charge, Army Criminal Investigation Division, Fort Knox, KY, advised the form was "fictitious" and this fact was later confirmed by Major H____. Major H____ stated he knew the applicant and he had kept in contact with him since serving together in South Korea, sometime in 2010 or 2011. He further stated he had never been stationed at Fort Dix and the applicant had not requested him to sign a DA Form 4187. Military authorities declined to investigate the matter. DFAS would not accept the DA Form 4187 due to discrepancies and the applicant was again directed to the ABCMR. REFERENCES: 1. Army Regulation 600-8-24 (Officer Transfers and Discharges) provides the rules for processing an involuntary release from active duty based on failure(s) to be selected for permanent promotion. Paragraph 5-9h states commissioned officers and chief warrant officers will be separated on the first day of the seventh calendar month after approval of the promotion board's report unless earlier release is voluntarily requested or retention on active duty in a Reserve status is approved by the Secretary of the Army or his or her designee. 2. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidates the policies, principles of support, and standards of service regarding processing personnel for transition. a.  It establishes standardized policy for preparation of the DD Form 214. It states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. b.  Paragraph 5-6r(4)(e) states when a Regular Army officer requests resignation and is approved for release from active duty to the Reserve Component, enter: "REFRAD pursuant to unqualified resignation constitutes officers' acceptance of appointment as a Reserve commissioned officer. No oath is required in accordance with 10 USC 12201(a)(2) and DOD Policy." 3. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. The SPD code JGB is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 2-41, for non-selection, permanent promotion. 4. DOD Financial Management Regulation, volume 7A, chapter 35, states separation pay is authorized to service members of the Regular Army and Reserve Components who have been involuntarily separated from active duty and have met each of the following conditions: a.  the member is on active duty or full-time National Guard duty and has completed at least 6 years but less than 20 years of active duty (a period of active duty is continuous if it is not interrupted by a break in service of more than 30 days); b.  the individual's service must be characterized as "honorable"; c.  the service member is being involuntarily separated through either denial of reenlistment or denial of continuation, though qualified for retention; and d.  the service member agrees to up to 3 years of service in the Individual Ready Reserve following separation. e.  A member who enters into a written agreement and who is not qualified for enlistment or appointment in the Ready Reserve need not be enlisted or appointed by the Military Service concerned to be considered to have met this condition of eligibility for separation pay. f.  Military members who receive separation pay under any provision of law based on service in the Armed Forces and subsequently either qualify for retired pay or retainer pay under Title 10, USC, or Title 14, USC, or become eligible for disability compensation administered by the Department of Veterans Affairs, are subject to recoupment of the gross taxable separation pay they receive. 5. DOD Instruction 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) states full payment of non-disability separation pay is authorized to members of the Regular and Reserve Components involuntarily separated from active duty: a.  if they are on active duty or full-time National Guard duty and have completed at least 6 years but fewer than 20 years of active service; b.  if their separation is characterized as honorable; and c.  if they entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a Reserve Component of the Armed Forces for a period of not less than 3 years following separation from active duty. d.  A member who enters into this written agreement and who is not qualified for appointment or enlistment in the Ready Reserve need not be enlisted or appointed by the Military Service concerned to be considered to have met this condition of eligibility for separation pay. 6. Title 10, USC, section 1174, states a Regular officer who is discharged under chapter 36 of this Title, except under sections 630(1)(A) or 643 of such chapter, or under sections 580 or 6383 of this Title and who has completed 6 or more but less than 20 years of active service immediately before that discharge is entitled to separation pay. 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. b.  Each person who enters into an agreement 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. DISCUSSION: 1. The applicant's request for full separation pay and a written agreement for service in the USAR for a minimum period of 3 years was carefully considered. 2. The discrepancy with his DA Form 4187, dated 2 May 2014, and the issues the Army had with Soldiers involuntarily discharged or released from active duty who were entitled to separation pay and were not compensated prior to separation were noted. 3. The ABCMR does not establish eligibility for entry into the Army. Although DFAS rejected his DA Forms 4187 for payment of his separation pay, HRC declined his waiver for a USAR commission on 20 June 2014. 4. Nevertheless, the DOD Financial Management Regulation and DOD Instruction 1332.29 both state a member who enters into this written agreement and who is not qualified for appointment or enlistment in the Ready Reserve need not be enlisted or appointed by the Military Service concerned to be considered to have met this condition of eligibility for separation pay. 5. In view of the aforementioned evidence, he met the criteria for full payment of non-disability 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) AR20160004933 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004933 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2