ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 August 2019 DOCKET NUMBER: AR20180013590 APPLICANT REQUESTS: Correction of his record to show he was paid Disability Severance Pay (DSP) at the rate of 2x no less than 6 year rate, and tax exempt, for a combat related injury. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 360-01, dated 26 December 2007 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 February 2008 * Memorandum, Subject: Administrative Change to DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 5 March 2008 * DA Form 199 (PEB Proceeding), dated 5 March 2008 * Leave and Earnings Statement (LES), dated 31 March 2008 * Orders Number 078-0009, dated 19 March 2009 * DD Form 215 (Correction to DD Form 214), dated 3 April 2009 * Congressional assistance request, dated 27 June 2018 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 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, he received DSP ($12, 842.74 before taxes, after taxes $9,632.06) at the base pay x 2 x years of service (3 years, 5 months, and 1 day). His injuries were deemed combat related while in Iraq, therefore, he was eligible for the higher rate of (base pay x 2 x no less than 6 years for combat related injuries), which should be $1883.10 x2 x6 years = $22,597.20 (tax free). His DSP was taxed by the Federal Government and New York State. He should be entitled to the difference of $12,965.14. He also received an email from the U.S. Army Human Resources Command (HRC) with an amended order stating he was entitled to payment at 6 years that was signed one year after he was separated from the Army. 3. A review of the applicant’s official records show on: * 13 September 2004 – the applicant enlisted in the Regular Army * 16 November 2005 – 15 November 2006 – the applicant served in Iraq in support of Operation Iraqi Freedom * 13 December 2007 – a PEB convened and the PEB found the applicant physically unfit and recommended * a combined rating of 10% * his disposition be separation with severance pay if otherwise qualified * the disability did result from a combat related injury as defined in Title 26 USC, section 104 * the Soldier’s retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty * 21 December 2007 – Orders Number 355-01, issued by the Kaiserslautern Transition Center, discharged the applicant from active duty, effective 13 February 2008, additional instructions did not entitle the applicant to DSP in the rank of corporal (CPL)/E-4 based on 3 years, 5 months, and 1 day * 26 December 2007 – Orders Number 360-01, issued by the Kaiserslautern Transition Center, amended Orders Number 355-01 insomuch as changing his separation to entitled to DSP in the rank of CPL based on 3 years, 5 months, and 1 day * 13 February 2008 – the applicant was honorably discharged from active duty, DD Form 214 shows he completed 3 years, 5 months, and 1 day of net active service * item 18 (Remarks) shows DSP $12, 842.74 * item 28 (Narrative Reason for Separation) shows DSP * the applicant’s records are void of any orders showing his injuries were incurred as a result of combat or combat related * 3 April 2009 – DD Form 215 was issued amending the applicant’s DD Form 214, showing item 28 was amended to show “Disability, Severance Pay Combat Related” * 22 August 2019 – a Case Management Division inquired with the Defense Finance and Accounting Service (DFAS) about DSP being tax exempt, the DFAS official replied stating if any of the questions below were answered “Yes” then the payment should be tax exempt, but he did not see this information on his orders * Member of an Armed Force on 24 Sep 75" * "Disability resulted from a combat related injury as defined in Title 26 USC, section 104" * "Disability is based on injury or disease received in line of duty as a direct result of war and incurred in the line of armed conflict or caused by instrumentality of war during a war period as defined by law" 4. The applicant provides: * Memorandum, Subject: Administrative Change to DA Form 199 wherein the applicant’s PEB findings were corrected but did not change his disposition or rating * DA Form 199 with emphasis on “Soldier injured by an improvised explosive device on 7 August 2006 while serving in Iraq with 2nd Battalion, 8th Infantry Regiment, during a period of war * LES showing the applicant’s DSP with Federal and State taxes being withheld * Orders Number 078-0009, issued by the Installation Management Command – Europe, Kaiserslautern Transition Center, amending Orders Number 355-01 insomuch as entitling the applicant to DSP based on 6 years in accordance with section 1646 of the 2008 National Defense Authorization Act * Congressional support request from the office of the Honorable J- T- 5. Department of Defense Financial Management Regulation (DOD FMR) 7000-14-R states: a. The members separation orders will specify the total combined years of active service to be counted in computing severance pay. Six years in the case of a member separated from the Armed Forces for disability incurred in the line of duty in a combat zone (as designated by the Secretary of Defense) or incurred during the performance of duty in combat-related operations. b. DSP is normally taxable income. However, it is not subject to tax withholding if the entitlement resulted from combat-related injury or illness, as determined by the Secretary of the Military Department concerned, which happens as a result of a direct result of armed conflict or by an instrumentality of war. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and applicable policy. The Board considered the applicant’s statement, his record of service, the reason for his separation, the amendments to his orders, the absence of records showing the cause of his injuries, the amount of DSP he received, the DFAS correspondence and DD Form 215 amending the applicant’s DD Form 214 to show “Disability, Severance Pay Combat Related.” Based on a preponderance of evidence, the Board determined that the applicant was entitled to additional DSP and that his injury was combat related. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X 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 to reflect: - the applicant was entitled to Disability Severance Pay (DSP) for a combined rating of 10% at the rate of 2x no less than 6 year rate; - that his DSP was tax exempt, for a combat related injury, and;. - that he be paid addition monies owed as a result of this correction. 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. 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. DOD FMR 7000-14-R states: a. The members separation orders will specify the total combined years of active service to be counted in computing severance pay. Six years in the case of a member separated from the Armed Forces for disability incurred in the line of duty in a combat zone (as designated by the Secretary of Defense) or incurred during the performance of duty in combat-related operations. b. DSP is normally taxable income. However, it is not subject to tax withholding if the entitlement resulted from combat-related injury or illness, as determined by the Secretary of the Military Department concerned, which happens as a result of a direct result of armed conflict or by an instrumentality of war. ABCMR Record of Proceedings (cont) AR20180013590 4 1