ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20190008230 APPLICANT REQUESTS: a 15 year retirement in lieu of the Special Separation Benefit (SSB) entitlements he previously received. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Discharge Order #93-79 dated 2 Apr 1992 * Department of Veterans Affairs Letters x 3 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 that he would like a 15 year retirement letter citing that he was mislead and further lead to believe that he was not going to be able to reenlist as a Sergeant (SGT/E5) and was therefore coerced into accepting an early discharge under the SSB program. He was not offered an early retirement and SSB payments would be provided for his time in service. As a result, presently the applicant is not entitled to disability compensation benefits until the entitlements received from the SSB are recouped. The applicant believes that he was unjustly separated. Had he been made aware of how his SSB would affect his VA Disability entitlements, he would have declined voluntary separation. 3. The applicant provides: * DD Form 214, dated 29 May 1992, reflecting 16 years 6 months and 24 days of active federal service and he was honorably discharged under the SSB program with a SSB payment of $44,835.12 with 3S reentry code * Order #93-79, dated 2 April 1992, reflecting his discharge from the Army and approved SSB payment entitlement and it states in #7 “Soldier who receive VSI/SSB based on service in the armed forces, and subsequently qualify under 10 USC or 14 USC for retired or retainer pay shall have deducted an amount equal to the total amount of VSI/SSB pay not previously recouped. This amount will be recouped from each payment of retired or retainer pay until the total amount deducted is equal to the total amount of VSI/SSB received” * Department of Veterans Affairs Letter, dated 17 December 1992, reflecting entitlement to disability benefits, however $44,835.12 of his previously provided separation pay must be recouped prior to receiving his service connected disability benefits. * Department of Veterans Affairs letter, dated 28 December 2018, reflecting his compensation entitlements and the scheduled payment disbursement, including statement for SSB paid, states that VA will withhold the amount the military paid him minus the amount of Federal income tax withheld. After this amount is paid back, the applicant will start receiving the full VA compensation * Department of Veterans Affairs letter, dated 10 January 2019, reflecting a Service-connected rating increase to 50% 4. A review of the applicant’s service records shows the following: * 2 June 1973 – he entered the Army under the Delayed Entry Program * 18 Oct 1973 – he entered active duty * his DA Form 2-1 (Personnel Qualification Record) shows he has a reenlistment code of 3 and was not eligible to reenlist * 23 January 1992 – he requested early separation and elected entitlements available under the SSB program; his DA Form 4187 (Personnel Action) shows he requested early separation under the Voluntary Incentive Program with a SSB incentive; his current expiration term of service was 19 July 1993, and his requested separation date was 1 June 1992 * 2 April 1992 (Order# 93-79) – he was reassigned to the Army Transition Point, approved for SSB payment, and it states “Soldiers who receive VSI/SSB based on service in the Armed Forces, and subsequently qualify under 10 USC or 14 USC for retired or retainer pay shall have deducted an amount equal to the total amount of the VSI/SSB pay not previously recouped. This amount will be recouped from each payment of retired or retainer pay until the total amount deducted is equal to the total amount of the VSI/SSB received.” * 29 May 1992 – he was discharged from the active Army and transferred into the Army Reserve * 30 May 1992 – he reenlisted in the Army Reserve for 3 years * 12 December 1995 (Order #D-12-506792) – he was discharged from the Army Reserve 5. See REFERENCES below for applicable regulations and policy to this case BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement, the Board found insufficient evidence to grant relief. The Board agreed that the applicant chose to be separated on 29 May 1992 after 16 years 6 months and 24 days of active federal service and he was honorably discharged under the SSB program with an SSB payment of $44,835.12. Federal statutes require that before the applicant can receive his VA disability benefits, the $44,835.12 of his previously provided separation pay must be recouped. The board found no injustice as this statute applies equally to all service members under similar conditions. However, the board noted that the applicant might pursue a 20-year USAR retirement by joining a USAR unit and accumulating the appropriate number of retirement years to achieve eligibility. 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: 1. 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. 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. Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states 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. Under DoD 7000.14-R (Financial Management Regulation) it states that a member who separates voluntarily from a military service before December 31, 2001 could, under conditions prescribed by the Secretary of the Army, elect to receive SSB. Such a member must have met each of the following conditions: * must have served for more than 6 years on active duty before December 5, 1991, but have less than 20 years of service creditable for retirement * must have completed an initial term of enlistment or initial period of obligated service prior to separation * must have entered into a written agreement to serve in the Ready Reserve for a period of not less than 3 years following separation. If the member had any other service obligation remaining unfulfilled at the time of separation, then the new 3 year period of obligated service began on the day after the day the member completed such period of prior obligated service 4. Section 350703 (Forfeiture and Recoupment) states that a deduction shall be made from a member who has received SSB and later qualifies for retired or retainer pay. The deduction shall be a portion of such retired or retainer pay until an amount equal to the gross amount of such SSB has been deducted. A deduction shall be made from a member who has received SSB and qualifies for benefits under the law as administered by VA. The deduction from such benefits shall be the gross amount of SSB paid to the member. 5. The FY93 National Defense Authorization Act established two monetary incentive programs to assist in maximizing voluntary separation during the drawdown period of military forces. a. One incentive was called the SSB which paid a special separation pay equal to 15 percent of the Soldier's years of active service and 12 times the monthly basic pay to which the Soldier is entitled at the time of his/her discharge or release from active duty. b. The other incentive was the Temporary Early Retirement Act (TERA) which was enacted by Congress on 23 October 1992 to assist in the military draw down of forces and to permit selected military members to retire early between 15 and 20 years of service and accrue additional military retirement points through service in military Reserve Components. The Secretaries of the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the service. Retirement under this program was not a right, it was granted on an individual basis according to the requirements of the service. 6. AR 635-200 (Enlisted Personnel) paragraph 16-8 (Early Separation due to Reduction in Force, Strength Limitations or Budgetary Constraints) states that Soldiers may be separated prior to expiration of enlistment of fulfillment of active duty obligation when specifically authorized based on limitations, strength restrictions, or budgetary constraints require the Regular Army (RA) or Reserve Component (RC) active duty enlisted force to be reduced in number, the Secretary of the Army, or his designee, may authorize voluntary or involuntary early separation. 7. 10 USC 12732 (Entitlement to retired pay: computation of years of service) states that Soldiers may request retirement for 20 qualifying years of service in the USAR and the retirement years will be counted as 1 point for each day of active service, one point for each attendance at a drill or period of equivalent instruction, and 15 points per year for membership in a reserve component of an armed force. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190008230 4 1