ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2019 DOCKET NUMBER: AR20160016438 APPLICANT REQUESTS: * removal of the statement “Separation Pay - $36,396” from his DD Form 214 (Certificate of Release or Discharge from Active Duty) * correction of his record to show he was entitled to half involuntary separation pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Addendum to DD Form 149 * DD Form 214 (2) * Orders Number 277-0001 * Orders Number 318-0002 * Defense Finance and Accounting Service (DFAS) Request for Leave and Earnings Statements (LES) * JUMPS LES Online Inquiry System 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 (ABCMR) 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 the statement “Separation Pay - $33,396” should be deleted from his DD Form 214 because he never received separation pay when he separated from the active service. Additionally, he believes he should be paid $11,257.62, which includes $5628.81 half involuntary separation pay and the $5628.81 erroneous deduction from active pay in November 2002. 3. The applicant provides the above referenced documents to include: a. Self-authored addendum which states his original orders did not authorize separation pay. However, 12 days later, the orders were amended which authorized him half separation pay. He is now classified as a disabled veteran, but, the Department of Veterans Affairs (VA) is withholding disability payments until the $36,396 separation pay (he never received) is vacated. b. Orders Number 277-0001, dated 4 October 2002, which state he was reassigned to U.S. Army Transition Point, Presidio of Monterey, CA for separation processing and discharge. c. Orders Number 318-0002, dated 14 November 2002, which amended Orders Number 277-0001 and added in the additional instructions “Soldier is entitled to half involuntary separation pay.” d. DFAS Request for LES Statements, dated 9 January 2013, which shows DFAS provided the applicant with copies of LES/Data Prints. 4. A review of the applicant’s service records shows: a. Having had prior service, he executed the oath of office and was appointed as a Reserve commissioned officer on 30 January 1992. b. On 27 June 2002, a Board of Inquiry (BOI) convened to determine if the applicant should be retained in the Army. The BOI recommended [Applicant] be eliminated due to his failure to maintain weight/body fat standards and is discharged from the Army with an honorable characterization of service. c. Message from Commander, Personnel Command in September 2002, which states the Deputy Assistant Secretary of the Army approved the elimination of [Applicant] due to substandard performance. Separation orders should read “Officer is entitled to half separation pay in accordance with (IAW) Department of Defense Instruction (DODI) 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay).” d. On 2 November 2002, the applicant was discharged from the Army under the provisions of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), Chapter 4, in effect at the time, with an honorable characterization of service, separation code is as listed as “JHK” and the narrative reason for separation reflects substandard performance. His DD Form 214 shows he completed 10 years, 9 months and 3 days of net active service. 5. On 14 March 2019, the Office of the Deputy Chief of Staff, G-1 reviewed the applicant's records and rendered an advisory opinion in his case. The Chief, Compensation and Entitlements Division opined: a. The applicant was never entitled to involuntary separation pay in accordance with Title 10 USC, section 1174 (Separation Pay Upon Involuntary Discharge or Release from Active Duty) and DODI 1332.29 and AR 637-2 (Separation Pay (Non- Disability) and Levels of Payment), in effect at time of separation. The applicant’s separation program designator “JHK” and narrative reason for separation “Substandard Performance” listed on DD Form 214 with a separation date of 2 November 2002 does not allow for the involuntary separation pay entitlement. b. There are no logical reasons as to why the original orders number 227-0001, dated 4 October 2002 was amended by orders number 318-0002, dated 14 November 2002 to authorize the involuntary separation pay entitlement. c. The Army G-1 enclosed DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 14 March 2019 which deleted the statement, “Separation Pay $36,396, member is entitled to half involuntary separation pay.” Also, the G-1 included the amendment to orders number 071-0001, dated 12 March 2019 that revoked orders number 318-0002, dated 14 November 2002 that authorized the entitlement to ISP. 6. The applicant was provided with a copy of the advisory opinion to provide a response. He did not respond. 7. By regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph 4-2, in effect at the time, states elimination action may be initiated for failure to achieve satisfactory progress in the Army weight control program or failure or maintain the weight/body fat standards. 8. By regulation AR 637-2, in effect at the time, prescribes policy and guidance relating to the qualifications for separation payment (Non-Disability). Table 2-2 (Limitation on Eligibility for Separation Pay) states an officer separated for substandard performance or acts of misconduct or moral or professional dereliction is not eligible for ISP. 9. DODI 1332.29 prescribes policy and procedures for determining eligibility for separation pay for Regular and Reserve members who are involuntarily separated from active duty. Paragraph 4(j) states officers separated for substandard performance or acts of misconduct, moral or professional dereliction are not eligible for separation pay. 10. Title 10, USC, section 1174, provides commissioned officers discharged and has completed six or more years or less than twenty years of active service is entitled to separation pay unless the Secretary of the Army determines that the conditions under which the officer is discharged or separated do not warrant payment of such pay. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The Army G-1 already fixed the separation pay entry by issuing him a DD Form 215. The Army G-1 also opined that the applicant is not authorized half separation pay either. The applicant was eliminated due to weight control. Therefore, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s military record. 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. _____________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. 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. Title 10, USC, section 1174 (Separation Pay Upon Involuntary Discharge or Release from Active Duty), provides commissioned officers discharged and has completed six or more years or less than twenty years of active service is entitled to separation pay unless the Secretary of the Army determines that the conditions under which the officer is discharged or separated do not warrant payment of such pay. 3. Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), in effect at the time, prescribes the tasks, rules, and steps for eliminating officer in the Active Army for substandard performance of duty, misconduct, moral or professional dereliction and in the interests of national security. Paragraph 4-2 states elimination action may be initiated for failure to achieve satisfactory progress in the Army weight control program or failure or maintain the weight/body fat standards. 4. Army Regulation 637-2 (Separation Pay (Non-Disability) and Levels of Payment), in effect at the time, prescribes policy and guidance relating to the qualifications for separation payment (non-disability). Table 2-2 (Limitation on Eligibility for Separation Pay) states an officer separated for substandard performance or acts of misconduct or moral or professional dereliction is not eligible for involuntary separation pay. 5. Department of Defense Instruction (DoDI) 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) prescribes policy and procedures for determining eligibility for separation pay for Regular and Reserve members who are involuntarily separated from active duty. Paragraph 4(j) states if the member is an officers separated for substandard performance or acts of misconduct, moral or professional dereliction are not eligible for separation pay. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160016438 4 1