ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20160013940


APPLICANT REQUESTS:  

* payment of separation pay
* personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 ( Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 4187 (Personnel Action)
* Enlisted Personnel Brief
* Separation Orders
* Separation Pay Computation Sheet
* Emails from Fort Belvoir Finance Office
* Email from Army Review Board Agency

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he was involuntarily separated from the military due to weight control program.  He was entitled to separation pay, which he never received.  He was unjustly separated from the Army without receiving separation pay.

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army (RA) on 2 October 2001.

	b.  He served in Iraq from 20 January 2003 to 26 August 2003 and from 27 January 2005 to 15 January 2006.  He served in Kuwait from 15 October 2007 to 10 December 2008.
	c.  On 1 February 2016, the applicant signed a DA Form 4187 (Personnel Action) and indicated the following: 

		(1)  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 his separation from Active Duty.

		(2)  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.

		(3)  If he had a service obligation that is not completed at the time he was separated from Active Duty, the 3-year Ready Reserve obligation shall begin on the day after the day on which he completed his existing obligation.

		(4)  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 DOD Instruction 1332.29, paragraph 3.1.4, unless it is 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. 

		(5)  If following the endorsement of this document as detailed above, it is 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 not be considered to have met this condition of eligibility for separation pay.

	d.  On 21 September 2015, Fort Belvoir published Orders 264-0002 reassignment him to the transition point for transition processing and discharge.  The orders also show he was authorized half-separation pay in accordance with Title 10, U.S. Code, section 1174.

	e.  On 20 December 2015, he was honorably discharged from active duty in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) due to “Non-retention on Active Duty.”  His DD Form 214 shows in:

* item 18 (Remarks) the entry “he was assigned Separation Pay $26,568.45
* Item 26 (Separation Code), the entry JCR

3.  On 11 October 2018, an advisory opinion was received from the Army G-1 in the processing of this case.  An Army G-1 official stated that after careful review, the Army G-1 was unable to verify that the applicant was eligible for separation pay in 2015.  The applicant does not have a case built in the Web RETAIN system to validate that he went to the Reserve Component Career Counselor (RCCC) Office to discuss his Reserve Component (RC) options prior to his ETS date.  However; he does have a signed DA Form 4187 signed by one of the RCCCs but it was signed on 1 February 2016 two months after he had separated on 20 December 2015.  His orders and DD Form 214 clearly state that he was eligible for half-separation pay, but it is unclear why the DA Form 4187 was signed after the Soldiers ETS date.  The installation correctly documented the payment level in order 264-0002 dated 21 September 2015.  As a condition of separation pay, 10 US.C. § 1174 requires a Soldier to sign a written agreement to serve a minimum of three years in the ready reserve of a Reserve Component (RC). Signing a RC contract does not determine the level of payment for involuntary separation pay.  If qualified, the Soldier must serve immediately after leaving active duty.

4.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond. 

5.  By directive, members of the RA who are involuntarily separated from active duty are entitled to separation pay if he or she has completed at least 6 years, but fewer than 20 years of active service, the member’s separation is characterized as “Honorable,” the member is involuntarily separated through denial of reenlistment, and the service member has entered into a written agreement to serve in the USAR for a period of not less than 3 years.

6.  By regulation (AR 15-185) applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that it could make a fair and equitable decision in the case without a personal appearance of the applicant.

Based upon the G1 advisory’s finding and the applicant failing to provide a rebuttal to those recommendations, the Board agreed to deny the request as he did not agree to IRR contract prior to separation.  The DA Form 4187 is after his discharge.  For that reason, the Board concluded there was no error or injustice in the applicant’s record which would warrant making a recommended change.  


BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


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.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 18 (Failure to Meet Body Fat Standards) prescribes the policy for Soldiers separated upon failing to meet body fat standards set forth in AR 600-9.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

4.  Title 10, U.S. Code, section 1174 (Separation pay upon involuntary discharge or release from active duty), 

	a.  sub-section (b), (1)  A regular enlisted member of an armed force who is discharged involuntarily or as the 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 computed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay.  (2)  Separation pay of an enlisted member shall be computed under paragraph (1) of subsection (d), except that such pay shall be computed under paragraph (2) of such subsection in the case of a member who is discharged under criteria prescribed by the Secretary of Defense.

	b.  sub-section (d), Amount of Separation Pay.—The amount of separation pay which may be paid to a member under this section is— (1) 10 percent of the product of (A) his years of active service, and (B) 12 times the monthly basic pay to which he was entitled at the time of his discharge or release from active duty; or (2) one-half of the amount computed under clause (1).

2.  DODI 1332.29 (Involuntary Separation Pay, Non-Disability), establishes policy, assigns responsibilities, and prescribes procedures concerning eligibility and requirements for receipt of separation pay for Active and Reserve Component Service members who are involuntarily separated from active duty or active service in accordance with Section 1174 of Title 10. 

	a.  Paragraph 3.1(a), full separation pay is authorized under five conditions, one of which is that the service member’s separation is characterized as “honorable” and none of the conditions in Paragraph 3.4. apply.  One of those conditions is that the service member is being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on active duty or in an active service status, under one of the several specific conditions.

	b.  Paragraph 3.1(b), half separation pay is authorized to members of the Active and Reserve Components who are involuntarily separated from active duty/service and who meet each of the five conditions.  One of those conditions is that the service member has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve, as provided for in Paragraph 3.1.a.(4).

ABCMR Record of Proceedings (cont)	 AR20160013940


4


1