IN THE CASE OF: BOARD DATE: 16 July 2020 DOCKET NUMBER: AR20180008970 APPLICANT REQUESTS: entitlement to full separation pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Order# 011-0001 dated 11 January 2018 * DA Form 4187 (Personnel Action) dated 14 February 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 11 April 2018 * DA Form 71 (Oath of Office) dated 12 April 2018 FACTS: 1. The applicant states that per her separation orders, she was entitled to full separation pay upon discharge from active duty with agreement to serve in 3 additional years in the United States Army Reserve (USAR) in accordance with Title 10, United States Code (U.S.C.) 1174. She provides that her career counselor (Master Sergeant) was unable to initiate a contract prior to her expiration term of service (ETS) because she received a notification that she was selected for a direct commission as a 71E (Clinical Laboratory Specialist) in the USAR. In order for her to receive her separation pay prior to her ETS date, she would need to be assigned to a 68K (Laboratory Specialist) position which would be a conflict of interest. She contests that she was commissioned on 12 April 2018 so therefore, she is fulfilling her 3 year service obligation within the USAR as was stipulated within her orders to receive separation pay. 2. A review of the applicant’s available service records reflects the following: a. On 29 June 2009 she enlisted in the United States Army Reserve (USAR). b. On 16 September 2009 she enlisted in the Regular Army to serve as a 68K. Her contract indicates a commitment of 5 years in the active component and 3 years in the USAR. c. On 12 April 2013 she reenlisted for 5 years in the Regular Army. d. On 13 September 2017 she applied for a conditional release from the Army. Her request was approved on 22 September 2017. e. On 29 September 2017 she applied for appointment as a commissioned officer; Area of Concentration requested – 71E. f. On 11 January 2018 (Order#011-0001) she was reassigned to the United States Army transition point pending separation on 11 April 2018. The orders indicate entitlement to full separation pay IAW Title 10, USC 1174. g. On 11 April 2018 she was discharged from the Army as a 68K having served 8 years 6 months and 26 days on active duty. The DD Form 214 issued is void of a separation pay entitlement. Item 28 (Narrative Reason for Separation) indicates “Completion of Required Active Service.” h. On 12 April 2018 she was commissioned in the USAR at the rank of Second Lieutenant (2LT) / O-1. i. On 1 October 2018 (Order# C-10-811262) she was reassigned due to appointment effective 12 April 2018. 3. The applicant provides the following: a. Order# 011-0001 dated 11 January 2018 – see 2e. above. b. DA Form 4187 (Personnel Action) dated 14 February 2018 reflective of her agreement to serve in the USAR for a period of not less than 3 years following her separation from active duty. Further noted is her understanding that the document would not serve as a written agreement unless it was endorsed by a Ready Reserve Career Counselor; the document is signed accordingly. Item 8 indicates that this is a Military Service Agreement. c. DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 11 April 2018 – see 2f. above. d. DA Form 71 (Oath of Office) dated 12 April 2018 – see 2g. above. 4. See applicable regulatory guidance below under REFERENCES. 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, her record of service, her request for conditional release and appointment as a commissioned officer, her discharge as an enlisted Soldier and commissioning the following day. The Board considered the policy pertaining to eligibility for separation pay and found that the applicant was released as a result of her requested conditional release. Based on a preponderance of evidence, the Board determined that the absence of entitlement to separation pay when the applicant was discharged at ETS was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 USC 1174 (Separation pay upon involuntary discharge or release from active duty) states that 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 unless the Secretary of the Army determines that the conditions under which the member is discharged do not warrant payment of such pay. a. Except as provided above 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 as determined by the Secretary concerned if: * the member's discharge or release from active duty is involuntary; ?or * the member was not accepted for an additional tour of active duty for which she volunteered. b. 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. c. The amount of separation pay which may be paid to a member is 10 percent of the product of his/her years of active service,12 times the monthly basic pay to which he/she was entitled at the time of his/her discharge or release from active duty. As a condition of receiving separation pay under this section, a person otherwise eligible for that pay shall be required to enter into a written agreement to serve in the Ready Reserve of a Reserve component for a period of not less than three years following the person’s discharge or release from active duty. d. A member who is discharged or released from active duty is not eligible for separation pay under this section if the member is discharged or released from active duty at her request. 2. Department of Defense Instruction (DODI) 1332.29 (Involuntary Separation Pay (Non-Disability) states a Service member being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on active duty or in an active service who is fully qualified for retention, but is denied reenlistment or continuation by the Military Service concerned is entitled to full separation pay. This includes a Service member who is eligible for promotion as established by the Secretary of the Military Department concerned, but is denied reenlistment or continuation on AD/AS by the Military Service concerned under established promotion or high year of tenure policies. The Service member, having been denied reenlistment or continuation on AD/AS by the Military Service concerned accepts an earlier separation from AD/AS. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008970 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1