IN THE CASE OF: BOARD DATE: 2 April 2020 DOCKET NUMBER: AR20190004620 APPLICANT REQUESTS: in effect, his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect: * his rank as Staff Sergeant (SSG)/E-6 * his severance pay be calculated in the rank/grade of SSG/E-6, in lieu of, sergeant (SGT)/E-5 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 (ABCMR) 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 was honorably discharged from the U.S. Army as a SGT, but he had made the cut off score for SSG prior to his departure from the military. He made SSG approximately five months before his expiration term of service. His unit was constantly deploying. He believes when the orders came down from Department of the Army, he was transitioning. In addition, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his severance pay was $65,799.00, but it was actually $52,329.20. That factor significantly affects his future monthly payments. He sent a copy of the DD Form 215 (Correction to DD Form 214) showing the amount he received to the intake center. He inquired about the updated upgrade prior to his discharge, but he was told that the Veterans Affairs would contact the Army and correct the error. 3. The applicant states he provides the Army Times from June 2002 with the E-6 Logistics 92Y cut off scores which has been partially ruined over the years, but it was not included with his application. 4. As it pertains to the discrepancy in the amount of severance pay paid to the applicant at the time of his discharge, the Defense Finance and Accounting Service (DFAS) is the appropriate agency to address this. The Board will consider whether to correct his DD Form 214 to reflect SSG. 5. A review of the applicant’s official records show the following: a. On 4 December 1987, the applicant enlisted in the Regular Army, and served continuously until his discharge from active duty. b. On 15 December 1994, Orders Number 349-27, issued by Headquarters, 18th Airborne Corps and Fort Bragg, NC, promoted the applicant to the rank of SGT, effective on 1 January 1995. c. On 21 June 2002, Orders Number 172-0250, issued by 18th Airborne Corps and Fort Bragg, reassigned the applicant to the transition point for transition processing. He was authorized disability severance pay in the rank of SGT based on 15 years, 2 months, and 22 days of service, 20% disability, and his disability was based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty, and his disability resulted from a combat related injury. d. On 28 June 2002, Orders Number 179-0283, issued by 18th Airborne Corps and Fort Bragg, amended Orders Number 172-0250 insomuch as changing his date of discharge from 17 September 2002 to 16 August 2002. His rank is shown as SGT. e. On 31 July 2002, he received his last DA Form 2166-8 (Noncommissioned Officer Evaluation Report) prior to his separation which shows his rank as SGT, with a date of rank of 1 January 1995. It states: * His overall potential for promotion was marginal * Personal endeavors always placed ahead of units’ needs; taking care of himself was always top priority * Failed to live up to all the Army values * Unable to lead from the front due to profile, Soldier could not perform basic military duties * Failed to set the example to Soldiers in the unit on numerous occasions by failure to be at appointed place of duty at appointed time f. On 16 August 2002, the applicant was honorably discharged from active duty by reason of disability, severance pay. DD Form 214, item 4a (Grade, Rate or Rank) shows the rank of SGT. g. On 23 April 2003, his DD Form 215 (Correction to DD Form 214) deleted his disability severance pay of $65,799.00 and added disability severance pay of $52,639.20. h. The applicant’s records are void of any orders promoting him to the rank of SSG. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s rank on his DD Form 214 or in his severance pay. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 15-185 (ABCMR) states in paragraph 2-9 the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 635-5 (Separation Documents) in effect at the time prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty. It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or discharge. Source documents will consist of separation orders, Enlisted Record Brief (ERB), and any other document authorized for filing in the official military personnel file. Item 4a, enter the active duty grade or rank and pay grade at the time of separation from the ERB. 4. 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. 5. From Defense Finance and Accounting Service (DFAS) website https://www.dfas.mil/retiredmilitary/plan/separation-payments/disability-severance- pay.html Disability Severance Pay All branches of service have the authority to separate a soldier on the Temporary Disability Retirement List (TDRL). Separation may occur with entitlement to disability severance pay or without. You must meet all of the following requirements to be eligible: * be found unfit for duty, * have less than 20 years of service, * and have a disability rating of less than 30%. Prior to January 28, 2008 members were required to have at least 6 months of service to qualify for discharge with severance pay. This rule no longer applies. If you were discharged with severance pay, you cannot go back on active duty or choose to apply for retirement later. However, you may be eligible to apply for monthly disability compensation from the Department of Veterans Affairs (VA) if the VA determines your disability is service-connected. Calculation and Payment Disability severance pay is a one-time lump sum payment. The amount equals 2 months of basic pay for each year of service which includes active service and inactive duty points, but the total service years cannot exceed 19 years. Additionally, the minimum number of years required for computation purposes is six years for a disability incurred in the line of duty in a combat zone, or 3 years in the case of any other member. Prior to January 28, 2008, a maximum of 12 years and minimum of three years creditable service was used. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004620 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1