IN THE CASE OF: BOARD DATE: 17 August 2020 DOCKET NUMBER: AR20190015446 APPLICANT REQUESTS: retroactive entitlement to Separation Pay. 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) dated 5 December 2013 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 that there is no Individual Ready Reserve (IRR) agreement reflected in his personnel records, and he has never received documentation associated with this when he was discharged from active duty and received separation pay. He paid off the debt associated with his missing clothing. He originally served in the Minnesota National Guard from 14 June 2001 through 13 June 2007 and then within the Regular Army from 7 October 2008 through 5 December 2013. 3. A review of the applicant’s available service records reflects the following: a. On 14 June 2001 he enlisted in the Army National Guard (ARNG) for 8 years. b. On 28 January 2004 he was issued a DD Form 214 reflective of 8 months 8 days of active duty service. c. On 5 June 2007 (Order# 156-1002) he was honorably discharged from the ARNG and transferred into the United States Army Reserve (USAR) – Annual Training effective 13 June 2007. d. On 7 October 2008 he enlisted in the Regular Army. e. On 8 March 2010 he reenlisted for 5 years with entitlement to a Reenlistment Bonus in the amount of $7100. As a contingent of his bonus receipt, he acknowledged that if he was unable to complete the full period of service, or if he failed to remain qualified within his specialty (25B), his bonus entitlement would terminate with recoupment of previous payments for the unexpired part of the period of obligated service. f. On 26 November 2013 (Order# 330-0039) he was reassigned to the United States Army Transition Point pending separation. g. On 5 December 2013 he was honorably discharged from active duty under the provisions of Army Regulation (AR) 635-200, paragraph 5-8 (Parenthood) with entitlement to one half separation pay in the amount of $7330.07. His provided DD Form 214 reflects 5 years 1 month and 29 days of active service during this period and 8 months 8 days of previous active service. 4. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 5 December 2013 – see 3e. above. 5. The applicant did not provide nor does review of his available service records reflect 6 or more years of active service. 6. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief. Per regulation, the applicant was paid the appropriate amount of separation pay. Per regulation, to be entitled to full separation pay, service members must complete 6 or more years of active service. The applicant only completed 5 years, 1 month and 29 days of active service and is therefore not entitled to full separation pay. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. DoDI 1332.29 states separation pay (non-disability) is authorized to members of the Regular and Reserve Components involuntarily separated from active duty who meet each of the following conditions: a. if they are on active duty or full-time National Guard duty and have completed at least 6 years but fewer than 20 years of active service b. if their separation is characterized as honorable c. if the service member is being involuntarily separated by the military service concerned through either the denial of reenlistment or the denial of continuation on active duty or full-time National Guard duty and - d. if they entered into a written agreement with the military service concerned to serve in the Ready Reserve or a Reserve component of the Armed Forces for a period of not less than 3 years following separation from active duty. 3. Army Regulation 637-2 (Separation Pay (Non-Disability) and Levels of Payment), Paragraph 2-1 Eligibility criteria states that Half separation payment of nondisability separation pay, is authorized to Soldiers of the regular and USAR involuntarily separated from active duty who meet each of the five conditions outlined in DODI 1332.29, which are as follows: a. The Soldier meets the criteria for active service specified in paragraph 2a above b. The Soldier’s separation is characterized as “Honorable” or “General (under honorable conditions)” c. The Soldier is being involuntarily separated by the Military Service concerned through either the denial of reenlistment/extension or the denial of continuation on active duty, or the Soldier is being separated instead of board action because the Soldier is not fully qualified for retention and is denied reenlistment and/or extension or continuation by the Military Service due to being separated under the provisions of Chapter 5 (Parenthood). d. The Soldier has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve as provided for in paragraph 2–1a(4). e. The Soldier has initialed and signed the disclosure statement included on DA Form 7783 acknowledging that if they later becomes eligible for retired or retainer pay and/or disability compensation from the Department of Veterans Affairs, the full amount of ISP received will be deducted from such pay. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 5 (Involuntary Separation due to Parenthood) states Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. Soldiers with a remaining Mandatory Service Obligation (MSO) are ineligible for transfer to the IRR and will be discharged if they are separated for Parenthood. 5. Title 10 United States Code 1174 (Separation pay upon Involuntary Discharge or Release from Active Duty) provides 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 computed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015446 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1