ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20160017535 APPLICANT REQUESTS: In effect, correction of his military record to show he is entitled to 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) * Orders Number D-05-690173R * Orders Number C-09-698459 * Orders Number C-10-614337 FACTS: 1. The applicant states, in effect: * he was denied continued service by the Qualitative Management Program (QMP) and released from active duty on 1 September 2016 * after his separation, his orders were rescinded and he was awarded a non-regular retirement * the documents for his non-regular retirement were processed 3 days after he was cleared for separation and was issued a DD Form 214 * with a new set of orders issued, his separation pay was taken away * he would like for his original orders to be reinstated, and he does not want to be in the Individual Ready Reserve (IRR) or Retired Reserve 2. The applicant provides: * DD Form 214, which shows: * he was honorably released from active duty on 1 September 2016, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, * a separation code of JGH (Involuntary Discharge) for non-retention on active duty * separation pay for $32,650 * applicant is entitled to half separation pay * Orders Number D-05-690173R issued by Human Resources Command (HRC), Fort Knox, KY, dated 1 September 2016, revoking or rescinding a previous order dated on 6 May 2016 which discharged him from service * Orders Number C-09-698459, issued by HRC, Fort Knox, KY on 1 September 2016, releasing him from active duty and assigning him to the U.S. Army Reserve (USAR) Control Group (Reinforcement), effective on 1 September 2016 * Orders Number C-10-614337, issued by HRC, Fort Knox, KY on 20 October 2016, which assigned him to the Retired Reserve for non-regular retirement for completing 20 or more years of reserve duty, effective 2 September 2016 3. A review of the applicant’s service record shows: * 26 February 1996 – enlisted in the USAR for 8 years * 3 September 2002 – reenlisted for 6 years * 10 February 2003 – ordered to active duty for mobilization and deployed from 8 May 2003 to 22 March 2004 * 8 June 2004 – ordered to active duty in Active Guard/Reserve status * 1 September 2016 – honorably released from active duty 4. On 31 March 2016, HRC, Fort Knox, KY issued the applicant a Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-Year Letter). This letter notified him of the completion of required service and eligibility for retired pay upon application at age 60. 5. On 6 May 2016, Orders Number C-05-605834 reattached the applicant to West Point, NY for separation processing, with a report date of 1 September 2016. 6. Prior to his discharge from active duty, the applicant requested to be released from active duty (REFRAD) for purposes of non-regular retirement. a. In a letter to his commander on 10 July 2016, he stated that he was given several options for retirement after a QMP. He chose non-regular retirement as of 31 August 2016, and was requesting REFRAD with concurrent transfer to the Retired Reserve. b. On 20 July 2016, his command in Brockton, MA executed a DA Form 4187 (Personnel Action) request by the applicant to REFRAD for non-regular retirement effective 31 August 2016. 7. On 1 September 2016, discharge orders number D-05-690173 were revoked. Orders Number C-09-698459 were issued to release the applicant from active duty, and assign him to the USAR Control Group (Reinforcement) on 1 September 2016. 8. On 14 February 2019, the staff of the ABCMR obtained an advisory opinion from HRC, Fort Knox, KY. The Chief, Operations Management Division, opined the following: * regretfully, HRC did not find regulatory basis to approve the applicant’s request * the applicant had 14 years, 6 months, and 7 days of Active Federal Service (AFS) at the time of his involuntary separation on 1 September 2016 * a Soldier must have 20 years of AFS to qualify for regular retirement, which he did not have * the applicant requested to be REFRAD and placed in the IRR in order to receive non-regular retirement * that said, once completed, the applicant is not eligible for half separation pay, but will receive retirement pay and benefits at age 60 9. The applicant was provided with a copy of this advisory opinion to give him a chance to submit a rebuttal. He did not respond. 10. 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]. 11. Title 10, U.S. Code, section 1174 paragraph h (Coordination With Retired or Retainer Pay And Disability Compensation) further states that a member who has received separation pay under this section, or separation pay, severance pay, or readjustment pay under any other provision of law, based on service in the armed forces, and who later qualifies for retired or retainer pay under this title or title 14 shall have deducted from each payment of such retired or retainer pay an amount, in such schedule of monthly installments as the Secretary of Defense shall specify, taking into account the financial ability of the member to pay and avoiding the imposition of undue financial hardship on the member and member’s dependents, until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay so paid. 12. Department of Defense Instruction (DoDI) Number 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) paragraph 3.2 states half payment of non-disability separation pay is authorized to members of the Regular and Reserve components involuntarily separated from AD who meet four conditions. See REFERENCES below for more information. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence submitted by the applicant and found within the military service record, to include the advisory opinion from HRC, the Board determined that the applicant failed to show an error or injustice which would warrant granting separation pay to the applicant. For that reason, the Board recommended denying the applicant’s request for relief. 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, 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 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 subsection (1) of paragraph d (Amount of Separation Pay), except that such pay shall be computed under subsection (2) of such in the case of a member who is discharged under criteria prescribed by the Secretary of Defense. c. Other members. (1) Except as provided in paragraphs (2) and (3), a member of an armed force other than a regular member who is discharged or released from active duty and who has completed six or more, but fewer than 20 years of active service immediately before that discharge or release is entitled to separation pay computed under paragraph (d)(1) or (d)(2), as determined by the Secretary concerned, if— (A) the member’s discharge or release from active duty is involuntary; or (B) the member was not accepted for an additional tour of active duty for which he volunteered. (2) If the Secretary concerned determines that the conditions under which a member described in paragraph (1) is discharged or separated do not warrant separation pay under this section, that member is not entitled to that pay. (3) A member described in paragraph (1) who was not on the active-duty list when discharged or separated is not entitled to separation pay under this section unless such member had completed at least six years of continuous active duty immediately before such discharge or release. For purposes of this paragraph, a period of active duty is continuous if it is not interrupted by a break in service of more than 30 days. 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. Title 10, U.S. Code, section 1174 paragraph h (Coordination With Retired or Retainer Pay And Disability Compensation) further states that a member who has received separation pay under this section, or separation pay, severance pay, or readjustment pay under any other provision of law, based on service in the armed forces, and who later qualifies for retired or retainer pay under this title or title 14 shall have deducted from each payment of such retired or retainer pay an amount, in such schedule of monthly installments as the Secretary of Defense shall specify, taking into account the financial ability of the member to pay and avoiding the imposition of undue financial hardship on the member and member’s dependents, until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay so paid. 3. Department of Defense Instruction (DoDI) Number 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) paragraph 3.2 states: a. Half payment of non-disability separation pay, computed as provided in paragraph 1(d) above, is authorized to members of the Regular and Reserve components involuntarily separated from AD who meet each of following four conditions: (1) The Service member meets one of the criteria for active service specified in paragraph 1, above. (2) The Service member's separation is characterized as "Honorable" or "General" as defined in DoD Directive 1332.14 (reference (e)), and none of the conditions in subparagraph b, below, apply. (3) The Service member is being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on AD or full-time National Guard duty, or the Service member is being separated instead of board action as provided in DoD Directive 1332.30 (reference (f)), under one of the following specific conditions: (A) The member is not fully qualified for retention and is denied reenlistment or continuation by the Military Service concerned as provided for in reference (e) or DoD Directive 1332.30 (reference (f)) under any of the following conditions: * Expiration of service obligation * Selected changes in service obligation * Convenience of the Government * Homosexuality * Drug abuse rehabilitation failure * Alcohol abuse rehabilitation failure * Security (B) The member is being separated under a Service-specific program established as a half-payment level by the Secretary of the Military Department concerned, as provided for in section 4, below. (C) The member, having been denied reenlistment or continuation on AD or full-time National Guard duty by the Military Service concerned under subparagraphs (a). and (b) above, accepts an earlier separation from AD. (D) The Service member has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a Reserve component of the Armed Forces for a period of not less than 3 years following the separation from AD. b. Limitations on Eligibility for Separation Pay – Service members separated under the following circumstances are not eligible for separation pay: (1) The member is separated from AD at the member's own request. (2) The member is separated from AD during an initial term of enlistment or an initial period of obligated service. The initial term of enlistment or initial period of obligated service is the active service obligation that the member incurred upon initial enlistment or upon enrollment in a commissioning program. This limitation also applies to a member who desires to reenlist or continue at the conclusion of the initial term of enlistment or an initial period of obligation and is denied by the Service concerned. (3) The member is released from AD for training or released from full-time National Guard for training. (4) The member is immediately eligible upon separation for retired or retainer pay based upon his or her military service. ABCMR Record of Proceedings (cont) AR20160017535 5 1