ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20160016059 APPLICANT REQUESTS: payment of separation pay. 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) 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 retention 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 the following: a. He enlisted in the Regular Army (RA) on 1 February 2006. b. He served in Iraq from 24 July 2006 to 14 October 2007 and from 10 September 2009 to 25 July 2010. c. On 14 January 2013, the applicant executed a request for Reserve Component assignment orders enlisted in the U.S. Army Reserve (USAR) for a remaining service obligation of 6 years. d. He was honorably discharged from active duty and transferred to the USAR on 16 January 2013. His DD Form 214 shows he completed 6 years, 11 months, and 16 days with 7 years, 6 months, and 3 days of prior active service. It also shows in: * item 25 (Separation Authority), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 4 * item 26 (Separation Code), KBK * item 27 (Reentry Code), 1 * item 28 (Narrative Reason for Separation), Completion of Required Active Service e. On 13 January 2019, he was honorably discharged from the USAR. 4. An advisory opinion was obtained by the Chief, Compensation and Entitlements Division of the Army G-1. The official stated: a. After careful review, it was determined the applicant should be entitled to Involuntary Separation Pay (ISP) in accordance with 10 U.S. Code, section 1174 (Separation pay upon involuntary discharge or release from active duty), Department of Defense Instruction 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay), and AR 637-2 (Separation Pay (Non-disability) and Levels of Payment). b. The applicant’s enlisted record brief confirmed he was a sergeant promotable when the transition center published the separation order dated 26 October 2012. As such, the retention control point for a promotable sergeant was 15 years of service. Upon discharge from active duty, the applicant had completed 14 years, 5 months, and 19 days of active service. c. Since he immediately contracted into the Reserve Component which is a condition for receiving ISP for those eligible to serve, a reasonable person can conclude that he was not afforded an opportunity to continue on active duty. Army policy requires Soldiers to submit a DA Form 3340 (Request for Continued Service in the Regular Army) and be denied. They did not locate such a document. d. In coordination with the applicant, he confirmed that he was in receipt of a Bar to Reenlistment that was lifted outside his reenlistment window and the command informed him that he would not be allowed to extend of reenlist. Being unable to locate a completed DA Form 3340, it is possible that the applicant was not correctly counseled regarding the policy requirements for ISP as a result of reaching his retention control point prior to the expiration of his contractual obligation on 16 January 2013. Regardless, his continued service on active duty could not have extended beyond 7 months. 5. The applicant was provided with a copy of the advisory opinion on 10 December 2018 and given an opportunity to respond. He did not respond. 6. 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. 7. By military message, RA Soldiers may perform active service up to their retention control point. Soldiers may not exceed the retention control point by more than one month. The retention control point for a SGT promotable was 15 years total active service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the documentary evidence presented by the applicant and the G1 advisory determining the applicant should be entitled to Involuntary Separation Pay in accordance with 10 U.S. Code, section 1174, Department of Defense Instruction 1332.29, and AR 637-2, the Board concluded that granting the applicant’s request was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 Army records of the individual concerned be referred to the Department of Finance and Accounting Service (DFAS) to pay the applicant the appropriate separation pay in accordance with 10 U.S. Code, section 1174, Department of Defense Instruction 1332.29, and AR 637-2. 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 4 (Separation for Expiration of Service Obligation) prescribes the policy for Soldiers separated upon expiration of enlistment or fulfillment of service obligation. 3. AR 637-2 (Separation Pay (Nondisability) and Levels of Payment), prescribes policy and guidance relating to the qualification(s) for separation payment. Paragraph 2-6 (Separation pay at the respective retention control point (RCP)) states if, upon request for continuation on active duty or active service, a commander or representative authorized to retain Soldiers denied extension when reenlistment and/or extension is not possible, then the Soldier, if fully qualified for retention, is entitled to full separation payment level. Soldiers not fully qualified for retention will be entitled to half separation payment level. 4. Military Personnel Message 11-096 (Change to Retention Control Points for Enlisted Soldiers Serving in the Regular Army or under the Active Guard Reserve Title 10 Programs), issued 25 March 2011, provides clarification and guidance to the implementation of all retention control points for enlisted Soldier serving on active duty across all Army commands. Effective 1 June 2011, Regular Army and Active Guard Reserve Title 10 Soldiers may perform active service up to their retention control point or age 62 for Regular Army and U.S. Army Reserve or age 60 for Army National Guard, whichever occurs first. Soldiers may not exceed their retention control point as shown below, by more than one month: Army Retention Control Points Grade Total Active Service in Years Private – Private First Class 5 Corporal (CPL)/Specialist (SPC) 8 CPL/SPC (Promotable) 12 Sergeant (SGT) 13 SGT (Promotable) 15 Staff Sergeant (SSG) 20 SSG (Promotable) 26 Sergeant First Class (SFC) 26 SFC (Promotable) 29 First Sergeant (1SG)/Master Sergeant (MSG) 29 1SG/MSG (Promotable) 32 Command Sergeant Major/Sergeant Major 32 ABCMR Record of Proceedings (cont) AR20160016059 4 1