ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  2 April 2019

	DOCKET NUMBER:  AR20160013947


APPLICANT REQUESTS:  payment of separation pay.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) show she is entitled to separation pay.  

2.  A review of the applicant’s service records show: 

	a.  The applicant enlisted in the Regular Army on 25 March 2005 and reenlisted on 20 February 2008.  

	b.  On 12 March 2014, U.S. Army Garrison published Orders 071-0027 ordering his discharge on 19 March 2014.  The orders states “Soldier is entitled to full separation pay in accordance with Title 10, U.S. Code, section 1174.” 

	c.  He was honorably discharged on 14 March 2014.  His DD Form 214 shows he completed 8 years, 11 months, and 25 days of active service.  It also shows: 

* Authority for Separation: Chapter 4, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) 
* Separation Code: JBK 
* Narrative Reason for Separation: Completion of Required Active Service
* The applicant was unable to sign the form

3.  An advisory opinion was received from the Army G-1 on 15 October 2018.  An advisory official stated: 

	a.  After careful review, the Army G-1 determined that the applicant is entitled to half Separation payment level in accordance with Title 10, U.S. Code, section 1174, Department of defense Instruction 1332.29 and Army Regulation (AR) 637-2 (Separation Pay (Non-Disability) and Levels of payment).  The applicant was at the Retention Control Point for his grade when separated.  

	b.  the Army G-1 recommends the Army Board for Correction of Military Records (ABCMR) correct the record to show the applicant signed a valid service agreement prior to separating from active duty.  Further, recommend the ABCMR approve the applicant's entitlement to separation pay and authorize the Defense Finance and Accounting Service (DFAS) to disburse the payment.

	c.  There is no clear reason why the applicant was not unable to sign his DD Form 214 or a Ready Reserve (RR) agreement prior to separation from active duty. Consequently, DFAS directed its military pay offices to stop issuing payment to Soldiers when the request for separation pay was not accompanied by a written agreement to serve a minimum of three years in the RR.  Since the applicant is not currently serving an obligation in the Reserve Component, which would have begun immediately following discharge from active duty, law and policy prohibit the Army from entering the applicant into a RR service agreement for the purpose of separation pay. 

	d.  the Army G-1 recommends that the applicant becomes aware of the above statute and the DOD policy that mandates recoupment of ISP if a member is in receipt of disability compensation from the Department of Veteran Affairs or becomes eligible for retired pay in the future.

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

5.  Title 10, U.S. Code, section 1174, states an enlisted member of the Regular Army, who is discharged involuntarily, or as a result of the denial of reenlistment, and who has completed six or more, but less than 20 years of active service immediately before that discharge, is entitled to separation pay.  Unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay, separation pay is computed according to certain formula.  [10% of the product of years of active service, and 12 times the monthly basic pay to which entitled at the time of his discharge or release from active duty, or  one-half of the amount].

6.  DODI 1332



BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that partial relief was warranted.  Based upon the advisory opinion from the Army G1, the Board concluded that granting the applicant’s request for separation pay was warranted, but IAW the Army G-1 determination that the applicant is entitled to half Separation payment level in accordance with Title 10, U.S. Code, section 1174, Department of defense Instruction 1332.29 and Army Regulation (AR) 637-2 (Separation Pay (Non-Disability) and Levels of payment).

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

: X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Showing the applicant executed and signed a valid service agreement prior to his discharge on 19 March 2014
* Deleting from Orders 071-0027, issued by Headquarters, U.S. Army garrison, Fort Bliss, TX on 12 march 2014 the entry "f. Soldier is entitled to FULL separation pay IAW 10 USC 1174" and adding the entry "f. Soldier is entitled to HALF separation pay IAW 10 USC 1174
* Deleting from the applicant's DD Form 214 the entry "SEPARATION PAY -- $25,973.08" and adding the entry "Half Separation Pay is Authorized"
* Auditing his pay record and paying him half separation pay based on this correction 

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to payment of full separation pay. 


	 
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, U.S. Code, section 1174 - Separation pay upon involuntary discharge or release from active duty. It states in:

	a.  Not applicable (officers). 

	b.  Regular Enlisted Members.

		(1)  A regularenlisted 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.

	c.  Not applicable. 

	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.  DOD Instruction 1332-29 (Involuntary Separation pa (Non Disability) states Involuntary Separation Pay (ISP) is authorized for Service members who are involuntarily separated from active duty and who meet the eligibility requirements of this issuance.  

	a.  Qualified Service members receiving ISP are required to agree to serve in the Ready Reserve (Selected Reserve or Individual Ready Reserve) of a Reserve Component for a period of not less than 3 years following the Service member’s discharge or release from active duty.  This obligation is in addition to any other service obligation of the Service member.

	b.  Half Separation Pay (Non-disability).  Half payment of non-disability ISP, computed as provided in Paragraph 3.2.b., is authorized to Service members of the Active and Reserve Components who are involuntarily separated from active duty and who meet each of the five conditions in the following paragraphs.  In extraordinary instances, the Military Service concerned may award full ISP to Service members who are otherwise eligible for half ISP when the specific reasons for separation and the overall quality of the member’s service have been such that denial of such pay would be clearly unjust.


ABCMR Record of Proceedings (cont)	 AR20160013947


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