ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 September 2019 DOCKET NUMBER: AR20190009570 APPLICANT REQUESTS: * highest grade held determination (Major (MAJ/O4) vs. Captain (CPT/O3)) * correction of separation pay debt APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored statement * Promotion Order to MAJ * Order# S236-3 * DD Form 214 (Certificate of Release or Discharge from Active Duty) (4) * Release from Active Duty Memorandum (Non-selection for Promotion) * DA Form 4240 (Data for Payment of Retired Army Personnel) 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100026823 on 5 July 2011 and AR2002082115 on 25 March 2003. 3. The applicant states that he received a promotion to MAJ in the Army Reserve while serving as a Staff Sergeant (SSG) in the Regular Army. He was informed that once he reached age 60, he would be entitled to change his rank from CPT to MAJ. After reaching age 60, he obtained a military identification card indicating the rank of MAJ of which he maintained for approximately 8 years. Prior to his retirement, the applicant was separated from the active component as a CPT on 1 January 1987 and transferred into the Army Reserve in result to his non-selection for promotion to MAJ. He was reduced in rank to Sergeant (SGT) and returned to active duty while maintaining a commission in the Army Reserve as a CPT. Upon his initial separation, he received separation pay in the amount of $30,000, of which $6,000 went towards his federal taxes. When he finally retired in January of 1992, he was required to pay back the entire $30,000. The applicant further provides in his self-authored statement that he is aware that he is not entitled to retirement pay as a MAJ, however he is still authorized to wear the rank after turning 60 years old. Once he reached age 60, he went to the Fort Hood personnel management office and was given MAJ rank, although still receiving retirement pay as a CPT. Eight (8) years later, while attempting to obtain an ID card for his spouse, he was informed that the personnel system still reflected him as a CPT and in result the new ID card would be issued reflecting him as a CPT. He contests that the promotion to MAJ orders that he received stated that no further action was required. He further contests that when he was initially separated and reduced to SGT due to his non-selection for promotion to MAJ, he received separation pay less the federal taxes; approximately $24,000. On 1 September 1992, his retirement pay reflected a debt resulting in a reduction of his pay by $1,200 a month until the entire $30,000 (instead of the $24,000 that he actually received) of separation pay was recouped. 4. The applicant provides a: * Promotion Order to MAJ dated 18 August 1988 – reflecting his selection for promotion to MAJ in the Army Reserve effective 5 May 1988 * Order# S236-3 dated 10 December 1991 - reflecting retirement from active duty and transfer into the Retired Reserve effective 31 August 1992; retired rank indicated as CPT * DD Form 214 dated 31 August 1992 – reflecting discharge from enlisted status as a SSG and retirement at the rank indicated on the retirement order i.e. CPT * Release from Active Duty Memorandum dated 7 July 1986 – reflective of his non- selection for promotion to MAJ in the active component * DD Form 214 dated 1 January 1987 – reflecting separation from the active Army and transfer into the Army Reserve (Reinforcement) at the rank of CPT * DD Form 214 dated 3 March 1975 – reflecting discharge from the Army as a SGT * DD Form 214 dated 2 April 1972 – reflecting release from the Army National Guard as a Private (PV2/E2) * DA Form 4240 dated 17 July 1992 – reflecting the applicant’s separation pay amount of $30,000 ($24,000 after taxes) 5. A review of the applicant’s personnel records reflects the following on: * 6 March 1975 – he was commissioned in the Army Reserve * 1 January 1987 – he was released from active duty as a CPT and transferred into the Army Reserve * 2 January 1987 – he enlisted in the Army at the rank of SGT, with a concurrent enlistment in the Army Reserve as a CPT * 17 August 1988 – he was selected for promotion to MAJ in the Army Reserve * 31 August 1992 – he was released from active duty at the rank of SSG and placed on the retired list at the rank of CPT 6. The applicant did not provide nor does review of his available military records reflect service on active duty as a MAJ. 7. The applicant’s previous submission was denied because he failed to provide evidence reflective of service on active duty in the rank of MAJ. The available records show CPT was the highest rank in which he served satisfactorily on active duty as he was released due to his non-selection for promotion to MAJ. 8. Title 10, U.S. Code, section 1370 states that, unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) will be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. 9. Title 10, U.S. Code, section 3964 states that each retired regular Army enlisted member who is retired with less than 30 years of active service is entitled, when active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he/she satisfactorily served on active duty, as determined by the Secretary of the Army. 10. DODI 1332.29 section 3.6 (Repayment of Separation Pay Severance Pay or Readjustment Pay) states that Service members who receive separation pay under this Instruction, or severance pay or readjustment pay under any provision of law based on service in the Armed Forces, and who subsequently qualify under 10 U.S.C. for retired or retainer pay shall have deducted an amount equal to the total amount of separation pay, severance pay, and readjustment pay. This amount will be recouped from each payment of this retired or retainer pay until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay received. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, including the applicant's statement, the Board found there is insufficient evidence to support relief in this case. 2. His Reserve promotion to MAJ does not entitle him to pay in that grade or placement on the Retired List in that grade because he did not serve as a MAJ in an active status. 3. The applicant believes he should not have to pay back the amount of severance pay that was withheld in taxes. DODI 1332.29 requires recoupment of the total amount of severance pay when a Soldier later becomes qualified for retired pay under Title 10, U.S. Code. The Board agreed that there is no evidence of error or injustice in the recoupment of the entire amount of his severance pay. The Board recommends, however, that he contact the Internal Revenue Service to determine what tax relief he may be authorized as a result of the recoupment of the entire amount of his severance pay. 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 to amend the decision of the ABCMR set forth in Docket Number AR20100026823 on 5 July 2011. 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 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. Title 10, U.S. Code, section 1370 states that, unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) will be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. 3. Title 10, U.S. Code, section 3964 states that each retired regular Army enlisted member who is retired with less than 30 years of active service is entitled, when active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he/she satisfactorily served on active duty, as determined by the Secretary of the Army. 4. DODI 1332.29 section 3.6 (Repayment of Separation Pay Severance Pay or Readjustment Pay) states that Service members who receive separation pay under this Instruction, or severance pay or readjustment pay under any provision of law based on service in the Armed Forces, and who subsequently qualify under Title 10 U.S.C. for retired or retainer pay shall have deducted an amount equal to the total amount of separation pay, severance pay, and readjustment pay. This amount will be recouped from each payment of this retired or retainer pay until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay received.