ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20160019550 APPLICANT REQUESTS: to be placed in Retired Reserve. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Notification of Denial of Continued Active Duty Service under the Qualitative Management Program (QMP) Memo * Statement of Options, QMP * Orders C-07-511020 * Orders C-07-511020A01 * Orders D-07-590136 * Orders D-07-590136A01 * Orders D-07-590136A02 * Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-Year Letter) FACTS: 1. The applicant states he was denied continued active duty service under the Qualitative Management Program (QMP), due to military downsizing. The program was approved to be retroactive in many aspects, one aspect directly impacted him completing school within four years of him getting promoted. He states he was promoted to E7 on 1 October 2010, and his command scheduled him for Senior Leaders Course (SLC) around 20 April 2012, however he was removed from the course without a solid reason. When he became Active Guard and Reserve (AGR), his command, 7th Battalion Army Reserve Career Division (ARCD), enrolled him into SLC with a scheduled start date of 13 February 2015. The QMP board was held just prior to the start date of SLC. The command decided to remove him from the SLC course and depending on the results of the QMP board he would be rescheduled for SLC. This resulted in him being removed from the AGR program. He appealed the QMP decision and was denied. During the QMP process he signed an agreement to receive separation pay instead of going into the retired reserves with the understanding the separation pay would be recouped from his retirement pay once he turned 60 years old until the total amount was paid. After his honorable discharge from the Army, he applied for Veteran Disability benefits, upon being approved and receiving his veteran disability, Defense Finance Accounting Service (DFAS) started recouping the separation pay immediately. He states the separation pay was paid back in full on 1 January 2017. His entire decision to receive separation pay was based on payment recoupment being taken out of his retirement pay. Now that the money has been recouped, he would like to be reconsidered for the Retired Reserve. 2. The applicant provided the following documents in support of his request: * QMP Memo, from the US Army Human Resources Command, dated 13 April 2015, showing he was selected from QMP, his discharge date of 1 November 2015 * Statement of Option, Qualitative Management Program (QMP), dated 24 April 2015, where he selected to not submit an appeal, and he understood he would be discharged on 1 November 2015 without entitlement to a hearing by a local separation board * Orders C-07-511020, from the US Army Human Resources Command, dated 17 July 2015, which shows his scheduled date of separation is 1 November 2015 * Orders D-07-590136A01, from the US Army Human Resources Command, dated 17 July 2015, are orders amending Orders C-08-290687, showing a change to “Soldier will complete 23 years 03 months 25 days of total active federal service on 1 November 2015” to read “Soldier will complete 23 years 03 months 25 days of total service for basic pay on 1 November 2015” * Orders C-07-511020A01, from the US Army Human Resources Command, dated 20 July 2015, are amendment orders showing a report date 1 October 2015 to out-process * Orders D-07-590136, from the US Army Human Resources Command, dated 20 July 2015, are discharge orders showing he is entitled to half separation pay, he shall have a deduction amount equal to the total amount of separation pay not previously recouped from each payment of retired or retainer pay until the total amount deducted is equal to the total amount separation pay received * Orders D-07-590136A02, from the US Army Human Resources Command, dated 13 August 2015, are orders amending Orders C-08-290687 showing a change to “Dependents: (YES/NO): NO” to read “Dependents: (YES/NO): YES” * Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-Year Letter), US Army Human Resources Command, dated 15 August 2013, showing he completed the required years of qualifying reserve service and is eligible for retired pay at the time the applicant turns age 60 in accordance with Title 10, U.S. Code Chapter 1223. 3. A review of the applicant’s records show: * 8 July 1992 – he enlisted in the Regular Army (RA) * 28 January 1997 – he transferred to the United States Army Reserve (USAR) * 15 August 2013 – he received the 20 year letter * 27 January 2014 – he entered Active Guard/ Reserve (AGR) * 13 April 2015 – he received notification of Denial of Continued Active Duty Service under the QMP * 24 April 2015 – he signed the Statement of Options, QMP, electing not to transfer in the Retired Reserve * 17 July 2015 – Orders D-07-590136 show he was entitled to half separation pay effective 1 November 2015 * 1 November 2015 – he was honorably discharged USAR 4. The applicant’s record is void of and the applicant did not provide documentation showing Veteran Disability Benefits recouping separation pay he received at the time of discharge. 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. 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. 7. 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: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record and length of service, the 20-year letter in his file, his AGR service, his selection by QMP for non-retention, his election prior to separation and his honorable discharge with separation pay. The Board considered his statement regarding recoupment of separation pay, but found no supporting documentation. The Board found that he was eligible to elect REFRAD with concurrent transfer to the Retired Reserves when completing the Statement of Options, Qualitative Management Program (QMP). Based on a preponderance of evidence, the Board determined that the applicant should be entitled to non-regular retirement based on his receipt of a 20-year letter. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted.? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XXX 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 the Army records of the individual concerned be corrected by: - Amending his 20150424 Statement of Options, Qualitative Management Program to show he elected “5. I have 20 or more years of qualifying service for a non- regular retirement on 1 November 2015 as computed under 10 USC 12732. I request release from active duty (REFRAD) with concurrent transfer to the Retired Reserves”; - That he applied for REFRAD within 30 days and his request was received and processed by the appropriate authority, and; - He is eligible for non-regular retirement pay upon reaching age 60. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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) AR20160019550 5 1