BOARD DATE: 19 July 2018 DOCKET NUMBER: AR20160005246 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x x: :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 July 2018 DOCKET NUMBER: AR20160005246 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 payment of full separation pay for his 10 years of active service. 2. The applicant states a. His original discharge orders did not have his eligibility for separation pay listed. The new orders that were released on 11 January 2016 illustrated that he was authorized full separation pay. He submitted the requirement for service in the Ready Reserve before the 1 March 2016 suspense. Fort Carson finance would not change his existing DD Form 214 (Certificate of Release or Discharge from Active Duty) with the amended orders without a signed DA Form 4187 (Personnel Actions). The Reserve Transition Office did not honor the signed written agreement that was illustrated in Military Pay E-Message 14-018 (Requirements for the Release of Full/Half Involuntary Separation Pay). They informed him that he had to have a memorandum signed by the U.S. Army Human Resources Command (HRC) either accepting or denying his request for continued service in the Reserve Component before granting his request of a signed DA Form 41487. Without that documentation, he was not allowed to receive a DD Form 215 (Correction of DD Form 214) reflecting authorization of separation pay. He received an honorable discharge for his 10 years of faithful service and his family would benefit from the stability of having additional income to assist with the hardship of finding career opportunities in the civilian workforce. b. He reviewed the eligibility requirements for separation pay in the DOD Financial Management Regulation (FMR), Volume 7A, Chapter 35. He submitted his written agreement before the 1 March 2016 deadline to HRC for continued service. He went to the Fort Carson Ready Reserve unit but he was denied the DA Form 4187 with the written statement before the 1 March 2016 suspense. He showed E-Message 14-018, page 4. However, according to Fort Carson Ready Reserve protocol, he had to have the memorandum signed by HRC. According to E-Message 14-018, page 4, he should have been forwarded the opportunity to sign the DA form 1487 in order to present to finance before clearing the installation. He believes this was an unintentional error by the Fort Carson Ready Reserve and that he should not be penalized for their oversight. He continued to persevere and received the documentation that Ready Reserve requested but the extra limitation caused him to miss the suspense to finance by 1 March 2016. 3. The applicant provides: * DD Form 214 * Separation Orders * Revocation of separation orders and new separation orders * Message ordering his separation * DA Form 4187 * Memorandum, Subject: Application for U.S. Army Reserve Appointment CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer and executed an oath of office on 10 August 2005. He entered active duty on 16 September 2005. 2. He served in a variety of stateside or overseas assignments including two tours in Iraq and one tour in Kuwait, and he attained the rank of captain (CPT). 3. On 25 September 2015, the Installation Management Command, Fort Carson, published Orders 268-0034 reassigning the applicant to the U.S. Army Transition Point for separation effective 1 March 2016. The orders are silent with respect to separation pay. 4. On 18 December 2015, HRC issued a message authorizing his involuntary discharge from active duty as a result of non-selection for promotion. The message stated, "Officer may be authorized separation pay in accordance with DOD FRM, Volume 7A, Chapter 35. As a condition of receiving separation pay officer must request appointment in the U.S. Army Reserve for a period not less than 3 years in accordance with Title 10, U.S. Code, section 1174." 5. On 24 December 2015, HRC issued a second message revoking his discharge and authorizing his release from active duty effective 1 march 2016 in accordance with paragraph 5-9 of Army Regulation (AR) 60-8-29 (Officer Transfers and Discharges) due to twice non-selected for promotion. 6. On 4 January 2016, Installation Management Command, Fort Carson, published Orders 004-0011, revoking Orders 268-0034, dated 25 September 2015. 7. On 11 January 2016, the Installation Management Command, Fort Carson, published Orders 011-0026 reassigning the applicant to the U.S. Army Transition Point for separation effective 1 March 2016. The orders state "Soldier is entitled to full separation pay in accordance with Title 10, U.S. Code, section 1174. In order to receive separation pay, the Soldier will either enlist in the Army Reserve, National Guard, or Ready Reserve." 8. The applicant was honorably discharged from active duty on 1 March 2016. His DD Form 214 shows he completed 10 years, 5 months, and 16 days of active service. He was assigned Separation Program Designator (SPD) Code "JGB." The Remarks block of this DD Form 214 does not mention separation pay. 9. On 6 February 2018, he was issued a DD Form 215 that added the entry "Separation Pay (the amount) and Soldier is entitled to full separation pay in accordance with Title 10, U.S. Code, section 1174." 10. On 2 March 2016, by memorandum, HRC notified the applicant that the Officer Accessions Branch considered his request for U.S. Army Reserve appointment but he was not selected for appointment. 11. Also on 2 March 2016 (after he had been discharged), the applicant completed a DA Form 4187. He stated: a. In order to receive separation pay, he agreed to serve in the Ready Reserve of a Reserve component of the Armed Forces for a period of not less than 3 years following my separation from Active Duly. b. He understood that if he were qualified for the Ready Reserves, upon separation from Active Duty, he would be enlisted or appointed, as appropriate, as a Reserve member by the Military Service concerned. c. If he had a service obligation that was not completed at the time, he would be separated from active duty, the 3-year Ready Reserve obligation would begin on the day after the day on which he completed his existing obligation. d. He understood that this document would not become a written agreement, for the purpose of eligibility for separation pay according to Title 10, U.S. Code, section 1174 and DODl 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 that he was eligible for such service. e. If following the endorsement of this document as detailed above, it was determined that he was not qualified for appointment or enlistment in the Ready Reserves, he would not be enlisted or appointed by the Military Service concerned and would be considered to have met this condition of eligibility for separation pay. REFERENCES: 1. Title 10, U.S. Code, section 1174 (Separation pay upon involuntary discharge or release from active duty), states, for regular officers: a. A regular officer who is discharged under chapter 36 of this title (except under section 630(1)(A) or 643 of such chapter) or under section 580 or 6383 of this title and who has completed six or more, but less than twenty, years of active service immediately before that discharge is entitled to separation pay computed under subsection (d)(1). b. A regular commissioned officer of the Army, who is discharged under section 630(1)(A), 643, or 1186 of this title, who has completed six or more, but less than twenty, years of active service immediately before that discharge or separation is entitled to separation pay computed under subsection (d)(1) or (d)(2), as determined by the Secretary of the military department concerned, unless the Secretary concerned determines that the conditions under which the officer is discharged or separated do not warrant payment of such pay. 2. 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, U.S. Army Reserve pay centers, and Defense Finance and Accounting Service (DFAS) employees instructions on the requirements for the release of full/half involuntary separation pay. This message stated, in part: a. 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. b. 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. c. 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. d. 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." e. 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. 3. All Army Activities 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: a. 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. b. 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. c. 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. DISCUSSION: 1. The applicant served on active duty from 16 September 2005 to 1 March 2016. He was not selected for promotion to the higher grade. Accordingly, he was involuntarily discharged due to his non-selection for promotion. He applied for a Reserve commission but his application was rejected. 2. Although he was involuntarily discharged, he was not automatically entitled to separation pay. Payment of separation pay was contingent on him signing a DA Form 4187 or a written agreement that had to have been signed by the applicant and Reserve Career Counselor or other official authorized to contract the Soldier into the Ready Reserve on or prior to the separation date. The applicant signed his document on 2 March 2016, after his discharge. 3. It is clear that the applicant's intent had been to continue his military service as evidenced by his application for a Reserve appointment and the DA Form 4187 that he signed agreeing to serve in the Ready Reserve. Unfortunately, he appears to have been improperly counseled regarding the initiation and signing of the document. 4. There is no barrier to recommending correction of his records to show he timely signed a written agreement (DA Form 4187) together with the Reserve Career Counselor or other official authorized to contract him into the Ready Reserve on or prior to his separation date. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005246 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005246 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2