BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20170009086 BOARD VOTE: ____x_____ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20170009086 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 the Army records of the individual concerned be corrected by: a. amending the DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 17 October 2014 to show the form was dated 29 September 2014, the applicant acknowledged his voluntary extension on 29 September 2014, and the oath of extension was performed on 29 September 2014, b. correcting his record to show he entered into a written agreement to serve in the Ready Reserve (the Texas Army National Guard) for a period of not less than 3 years following separation from active duty, and c. paying him separation pay in accordance with the applicable formula. _____________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. BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20170009086 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests amendment of his extension of enlistment, completed on 17 October 2014, to reflect a completion date prior to 30 September 2014 thereby entitling him to separation pay. 2. He states he inquired about whether or not he qualified for separation pay and the process for requesting the entitlement prior to 30 September 2014. He was informed that all separation pay had been put on hold as of 3 November 2014. He states he initially requested a 4-year extension prior to 30 September 2014 through his unit, but due to not having an administrative noncommissioned officer, the extension was not completed until 17 October 2014. 3. He provides: * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 17 October 2014 * Memorandum, subject: Suspension of Involuntary Separation Payments for Full-Time National Guard Duty Soldiers, dated 3 November 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Email, dated 29 October 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Army National Guard (ARNG) on 4 November 1992 and he executed numerous extensions/reenlistments. On 21 June 2006, he was ordered to active duty (AD) in an Active Guard Reserve (AGR) status. 2. On 4 September 2013, the applicant extended his enlistment in the ARNG for a period of 1 year thereby establishing an expiration term of service (ETS) date of 7 December 2014. 3. On 30 September 2014, the applicant was honorably released from the ARNG. His DD Form 214 credits him with completing 8 years, 3 months, and 10 days of net active service this period. Item 18 (Remarks) of his DD Form 214 shows he is eligible to receive full separation pay in the amount of $77,851.17. 4. On 17 October 2014, the applicant extended his enlistment in the ARNG for a period of 4 years thereby establishing an ETS date of 7 December 2018. 5. In a memorandum, subject: Suspension of Involuntary Separation payments for Full-Time National Guard Duty Soldiers, dated 3 November 2014, the Director of Plans and Resources, Office of the Deputy Chief of Staff G-1 suspended all involuntary separation payments to Title 32, Full-Time National Guard Duty Soldiers. The suspension was effective the date of the memorandum and pending a legal opinion from the Office of the Judge Advocate General. The memorandum further stated that in the process of developing separation pay policy, the agency determined the Soldiers may not be entitled to the payment in accordance with Title 10, U.S. Code 1174 based on the definition of "AD" as defined in section 101 of the same title. 6. On 8 June 2017, an advisory opinion was obtained from the Chief, Special Actions Branch, National Guard Bureau (NGB), who recommends approval of the applicant’s request. This official states: a. The applicant served continuously in an AD/active service status under Title 32, Full-Time National Guard Duty during the period 21 June 2006 through 30 September 2014. The total service for this period was 8 years, 3 months, and 10 days. The DD Form 214 issued for this period indicated he was authorized full involuntary separation pay in the amount of $77,851.17. He was denied separation pay because he was not informed at the time of his release that he was required to extend his term of service in a Reserve component for 3 years. He was released to a traditional drilling status in the Texas Army National Guard (TXARNG) where he continues to serve today. He had no intentions of leaving military service when he was released from AD. Based on his continuous active service, he was fully eligible to receive separation pay upon his release from AD. His denial is due to an administrative error based on a lack of understanding the program guidance at the time. b. Separation pay eligibility requirements are outlined in Department of Defense Instruction (DODI) 1332.29. The applicant met those requirements with the one exception of completing the extension of service agreement prior to his release on 30 September 2014. This omission was due to no fault of the applicant. c. The applicant and similarly situated ARNG Soldiers released from a qualifying period Title 32, Full-Time National Guard Duty were routinely denied involuntary separation pay during this time. The denial was further exacerbated by the publication of the memorandum, subject: Suspension of Involuntary Separation Payments for Full-Time National Guard Duty Soldiers, dated 3 November 2014, listed above. Separation payments to this population of Solders were reinstated by memorandum, subject: Reinstatement of Involuntary Separation Payments for Full-time National Guard Duty Soldiers, dated 17 April 2015. 7. On 13 June 2017, the advisory opinion was provided to the applicant for acknowledgement and comment, but he did not respond. REFERENCES: DODI 1332.29 governs separation pay. It states half payment of non-disability separation pay is authorized to members of the Regular and Reserve components involuntarily separated from active service who meet each of following four conditions: * the member meets one of the criteria for active service, including more than 6 but fewer than 20 years of active service in a Regular component * the member's separation is characterized as "honorable" or "general" * the member is being involuntarily separated through either the denial of reenlistment or the denial of continuation on AD, or the member is being separated instead of board action * the member has entered into a written agreement to serve in the Ready Reserve for a period of not less than 3 years following the separation from AD DISCUSSION: 1. The applicant's record shows on 4 September 2013, he requested and was granted a 1-year extension of his ETS date thereby establishing a new ETS date of 7 December 2014. 2. On 17 October 2014, the applicant requested and was granted a 4-year extension of his ETS date thereby establishing a new ETS date or 7 December 2018. 3. The available evidence indicates he was involuntarily released from full-time National Guard Duty on 30 September 2014. His DD Form 214 verifies that he was eligible to receive full separation pay in the amount of $77.851.17. 4. It appears the only barrier to him receiving full time separation pay was he failed to complete his service agreement extension prior to his release on 30 September 2014 and he did not acquire a 3-year written agreement to serve in the Ready Reserve, which was due to no fault of his own. However, the applicant continued to serve in the TXARNG. 5. The NGB representative recommends approval of the applicant's request and states the denial of his separation pay was further exacerbated by the memorandum suspending involuntary separation payments for full-time National Guard Duty Soldiers effective 30 November 2014, which was reinstated on 17 April 2015. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170009086 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170009086 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2