IN THE CASE OF: BOARD DATE: 1 December 2022 DOCKET NUMBER: AR20220000705 APPLICANT REQUESTS: * in effect, severance pay * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * 2 x DD Forms 149 (Application for Correction of Military Record) * Orders Number 348-00635, published by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, KY, 13 December 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 29 January 2013 * Letter from the Department of Veteran Affairs (VA) * 2 x Self-Authored Emails to the Army Review Boards Agency (ARBA) * Self-Authored letter to Defense Finance Accounting Service (DFAS) * DFAS Ask MyPay Ticket * Privacy Release Authorization form * Pictures of Identification Cards FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in effect: a. She requests her records be corrected stating she did not receive severance pay from the military for her lumbar degenerative disc disease in the amount of $60,912.00. b. According to VA records, the severance pay is stated to be in the amount of $45,864.00, which she also did not receive. c. She believes her record is in error because she never received any amount of money for her lumbar degenerative disc disease. She also never received $60,912.00; $45,684.00, or $15,000.00. d. She provided a document from the VA, which states she should have received severance pay for her disability. 3. The applicant's service records contain the following documents for the Board's consideration: a. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), which shows she enlisted in the U.S. Army Reserve (USAR) delayed entry program (DEP) on 27 July 2001 for a period of 8 years. On 16 October 2001, she was discharged from the USAR DEP and entered active duty for a period of 4 years. b. A Memorandum from Headquarters and Headquarters Company Garrison, Fort Knox, KY, Subject: Counseling Statement of Pregnancy, dated 1 November 2004, showing the applicant was counseled regarding her pregnancy. The applicant stated she was not coerced regarding her decision, and she elected discharge for the reason of pregnancy and declared to remain on active duty until 1 April 2005. The applicant and her commander endorsed the memorandum. c. The applicant completed a letter, dated 7 February 2005 again electing separation due to pregnancy. d. DA Form 4187 (Personnel Action) completed by the applicant showing she was requesting discharge due to pregnancy with a separation date of 1 April 2005. In an undated memorandum, the applicant's request for separation was approved and she was issued an honorable characterization of discharge. e. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably discharged on 20 May 2005 for pregnancy. f. DD Form 4 showing the applicant enlisted in the Regular Army on 16 May 2006 for a period of 3 years with a subsequent reenlistment on 4 July 2008 for a period of 6 years. g. On 13 December 2012, Orders Number 348-0635 issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, reassigned the applicant to the transition point for transition processing with a separation date of 29 January 2013. Additional instructions state she was authorized disability severance pay in the rank/grade of sergeant (SGT)/E-5 based on 10 years, 3 months, and 19 days of service. h. The applicant's service record is void of her physical evaluation board proceedings. i. On 29 January 2013, she was issued a DD Form 214 honorably discharging her from active duty by reason of disability, severance pay, non-combat (enhanced). Item 18 (remarks) shows disability severance pay in the amount of $59,892.00. 4. The applicant provides the following documents for the Board's consideration: a. A letter from the VA, dated 7 January 2021, stating they were working on her claim. They had received a response from DFAS about disability severance pay on 4 January 2021. DFAS confirmed that disability severance pay was given to the applicant. On her original award letter dated 26 June 2013, the VA did not withhold disability severance pay of $60,912.00 she had received from the military for her Lumbar Degenerative Disc Disease rated at 20 percent because it did not affect her overall or combined rating of 90 percent. If she received an increase for her lumbar degenerative disc disease and it affected her overall rating, they may have to recoup the amount of severance pay she received from the military, until the balance was paid off. b. An email to ARBA, dated 29 November 2021, which states she was checking on the status of her application to correct her records for severance pay. She was a single mother and disabled veteran who had been working on this for months. The severance pay was going to be a huge blessing for her and her two boys who were homeless. ARBA responded on 30 November 2021, stating they did not have the application. c. A letter of notification to DFAS, dated 14 December 2021, which states upon request of DFAS, the letter was to inform DFAS she had not received payments in the amounts of $60,912.00 (January 2013) $40,465.72 (February 2013, and $15,228.00 (July 2013). d. A DFAS MyPay ticket, dated 13 January 2022, which states please provide poof of the following vouchers and amounts which she allegedly received. She had not received $40,455.72 that was allegedly received in February 2013 or $15,000.00 allegedly received in July 2013. With an additional amount of $45,486.00 disability severance pay for her lumbar degenerative disc disease. She had never received any of the money. She requested proof of when, where, and how she received the money. DFAS responded stating they could not find any information in their system. From what she submitted, the claims were through the VA and she needed to contact them. e. Privacy Release Authorization dated 20 January 2022, which states in effect, she spoke with the VA and was told she should had have received severance pay for an injury she received while in Iraq. She contacted DFAS and was told to fill out a form and to include supporting documents. She is now getting the runaround from DFAS. f. An email to ARBA, dated 24 January 2022, which states for the last 120 days she has been trying to have her records corrected to receive her disability severance pay for her injury claim; however, DFAS has been giving her the runaround and without proof she has been paid, they closed her account and refused to help. She had to contact her Congressman to get help and requested ARBA contact her. ARBA responded to her email on 25 January 2022 stating they had received her application. g. Pictures of her Texas driver license and a picture of her VA identification card. 5. On 29 November 2022, DFAS provided the following information pertaining to the applicant's disability severance pay: disability severance pay $60,912.00 minus $15,225.00 Federal taxes = $45,687.00. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, a majority of the Board found relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. A majority of the Board found the available records confirm the applicant received the disability severance pay she was authorized. A majority of the Board determined the applicant has not demonstrated by a preponderance of the evidence that she did not receive the severance pay she was authorized. 3. The member in the minority found insufficient evidence to confirm the applicant received the severance pay she was authorized, noting that no agency has been able to provide any proof of pay, which should be readily obtainable. The member in the minority determined the applicant’s record should be corrected by authorizing a payment of $60,912.00 less taxes and the applicant should be paid the after-tax amount. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 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. Department of Defense Financial Management Regulation, Volume 7B section 040601 (Disability Severance Pay) states upon determination by the Secretary concerned that a member of the Armed Forces is unfit to perform the duties of his office, grade, rank or rating because of physical disability rated less than 30 percent, the department may separate the member with disability severance pay. 3. Army Regulation 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. Paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000705 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1