IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20220011782 APPLICANT REQUESTS: payment of his separation pay in the amount of $12,000.00. A personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 31 (Request and Authority for Leave), 11 July 2022 * Orders Number 194-0006, 13 July 2022 * Separation/Retirement Interview Checklist, 15 July 2022 * DA Form 7783 (Written Service Agreement and Mandatory Disclosure Statement), 26 July 2022 * Memorandum for Record (MFR), Subject: Possible Recoupment of ISP or Disability Severance Pay, 5 August 2022 * Defense Finance and Accounting Service (DFAS) Memorandum for Thrift Savings Plan (TSP) from Final Check - Blank * Office of the Inspector General (IG) Letter, 25 October 2022 * Memorandum for the Army Board for Correction of Military Records (ABCMR), 28 October 2022 FACTS: 1. The applicant states, in pertinent part, he was supposed to receive $12,000.00 in separation pay at the end of his service on 1 October 2022. On 7 October 2022, the finance department at Fort Eustis, Virginia, observed that his career counselor had submitted the DA Form 7783 with his separation packet. He was separated under the Qualitative Management Program (QMP) sanctions and therefore ineligible to join the Ready Reserve (RR). As such, the career counselor was not authorized to counsel him for the RR, and because of this error, he was unable to receive the monies promised which has caused severe hardship on his transitioning from service and does his family a disservice. 2. A review of the applicant's available service record reflects the following: a. On 26 October 2006, he enlisted in the Louisiana Army National Guard (LAARNG). b. National Guard Bureau Form 22 (Report of Separation and Record of Service), dated 14 June 2020 reflects an honorable discharge from the LAARNG with service from 26 October 2006 to 14 June 2020 with a net service this period of 13 years, 7 months, and 20 days. c. On 15 June 2020, he enlisted in the Regular Army. d. On 13 July 2022, the U.S. Army Support Activity, Joint Base Langley-Eustis issued Orders Number 194-0006 assigning him to the U.S. Army transition point for out processing and honorable discharge from active duty, effective 1 October 2022. e. DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 1 October 2022 reflects an honorable discharge for non-retention on active duty. (1) Item 12 (Record of Service) shows service from 15 June 2020 to 1 October 2022 with a net active service this period of 2 years, 3 months, and 14 days. (2) Item 18 (Remarks) states "Separation pay - $12,224.52//Member has completed first full term of service//Member is entitled to half separation pay//." 3. The applicant provides the following: a. DA Form 31 dated 11 July 2022 showing his request for 60 days terminal leave from 3 August 2022 to 1 October 2022. b. Separation/Retirement Interview Checklist, dated 15 July 2022 provided in support of his out-processing from active duty. c. DA Form 7783 dated 26 July 2022 wherein he declined to enter into a written agreement to serve in the RR in accordance with Title 10, United States Code (USC), section 1174 and was marked not qualified for appointment or enlistment in the RR. d. MFR, Subject: Possible Recoupment of ISP or Disability Severance Pay, dated 5 August 2022 wherein the DFAS Army Military Pay Office identified his receipt for Involuntary Separation Pay (ISP) in the amount of $50,000.00 and its possibility for recoupment should he receive any disability payments from the Veterans Affairs and in certain cases, retired or retainer pay until the total amount deducted is equal to the total amount of ISP received. e. Office of the IG Letter dated 25 October 2022 states, in effect, the letter is issued in response to the applicant's complaint on 11 October 2022 to the Fort Eustis Center for Military Training IG concerning his severance pay. (1) They conducted an inquiry into the matter and determined that effective 1 February 2019, the Written Service Agreement and Mandatory Disclosure Statement (DA Form 7783) is the only acceptable written agreement. If this form is not correctly completed/signed prior to separation, the Soldier will have to seek resolution with the ABCMR. The DA Form 7783 has a section where the Soldier must initial regarding the potential recoupment of the ISP at a later date. (2) They consulted with Financial Management Command, and they agree with the determination. The office recommends that he request from the career counselors in building number 650 to assist him by providing statements of what happened and a corrected DA Form 7783 to submit his appeal. f. Memorandum for the ABCMR dated 28 October 2022 from Master Sergeant (MSG) T- P-, wherein he states, in effect: (1) The separation packet of the applicant contained a DA Form 7783. In section III of the form, at the bottom of the section, you will see a digital "X" in the "I decline to enter" section of the form. This "X" indicates that the applicant's choice was that he declined to enter into a written agreement with the Ready Reserve in accordance with Title 10, USC, section 1174. The digital "X" in the check block, however, was accidentally placed in the box with no malice intent on either the applicant or his behalf. The applicant had every intent to join the Reserve Component as it was discussed, however, he was separated under the QMP and was flagged for personal actions at the time of separation. The flag and type of separation disqualified the applicant from enlisting into a Reserve Component. This disqualification and his choice only required that the "I decline to enter into a written agreement" box be left empty, section III initialed by the applicant, and that only section IV, a "X" would have been placed in the "is not qualified" block. (2) As it is notated section III of the DA Form 7738, the form must be endorsed by a RR career counselor or other official authorized to contract Soldiers into the RR. MSG T- P- is not qualified Reserve Component Career Counselor as required in accordance with DA PAM 601-280 (Army Retention Program Procedures). In this case, this would make the DA Form 7783 for the applicant's separation packet invalid to determine his eligibility for separation pay as notated in section III of the DA Form 7783. The completed DA Form 7783 did have a quality control performed on it by a Reserve Component Career Counselor, however, it was only for completeness and did not identify the mistake and incorrect annotation in section III by the applicant. 4. On 28 July 2023, the Defense Finance and Accounting Service provided the applicant's final Leave and Earnings Statement and master military pay account stating separation pay was not listed. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined there was sufficient evidence to show the applicant did not receive separation pay at the time of his discharge. Evidence in the record show the applicant was separated under the Qualitative Management Program (QMP) sanctions and therefore ineligible to join the Ready Reserve (RR). Furthermore, the Board found at not fault of the applicant’s DA Form 7783 was accidentally placed in the incorrect box with no malice intent on either the applicant or his behalf. The applicant had every intent to join the Reserve Component as it was discussed. Based on the DFAS verification and evidence in the applicant’s record, the Board granted relief for payment of his separation pay in the amount of $12,000.00. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show the applicant is eligible for payment of his separation pay in the amount of $12,000.00. 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. Department of Defense Instructions 1332.29 (Involuntary Separation Pay (Non- Disability), 3.1 Eligibility states full Separation Pay (Non-disability). Full payment of non- disability ISP, computed as provided in Paragraph 3.2.a., is authorized to Service members of the Active and Reserve Components who are involuntarily separated from Active Duty (AD)/Active Service (AS) and who meet each of following five conditions: a. The Service member has completed at least 6 years, but fewer than 20 years, of AD/AS. For Reserve Service members, 6 years of continuous AD/AS must have preceded immediately before separation. A period of AD/AS is continuous if any break in military service does not exceed 30 days. b. The Service member's separation is characterized as "honorable" and none of the conditions in Paragraph 3.4. apply. c. 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 in an active service status, under one of the following specific conditions: (1) The Service member is fully qualified for retention, but is denied reenlistment or continuation by the Military Service concerned. This includes a Service member who is eligible for promotion as established by the Secretary of the Military Department concerned but is denied reenlistment or continuation on AD/AS by the Military Service concerned under established promotion or high year of tenure policies. An officer who declines continuation is eligible to receive full separation pay if the period of time offered for continuation on AD/AS is less than the amount of service required to qualify for retirement. (2) The Service member is fully qualified for retention and is being involuntarily separated under a reduction in force by authority designated by the Military Service concerned as authorized pursuant to Title 10, USC. (3) The Service member is a: a. Regular officer, commissioned or warrant, who is being separated in accordance with Chapter 36 (except under Section 630(1)(A)) of Title 10, USC., or Section 580, Section 1165, or Section 6383 of Title 10, USC.; or b. Reserve commissioned officer separated or transferred to the Retired Reserve in accordance with Chapters 573 or 861 of Title 10, U.S.C. or a Reserve warrant officer who is separated for similar reasons under Service policies. (4) The Service member, having been denied reenlistment or continuation on AD/AS by the Military Service concerned in accordance with Paragraphs 3.1.a.(3)(a) through 3.1.a.(3)(c), accepts an earlier separation from AD/AS. d. The Service member has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a Reserve Component of the Military Services for a period of not less than 3 years following the separation from AD/AS. (1) If the Service member has a service obligation pursuant to Section 651 of Title 10, USC., or any other provision of law that is not completed at the time the Service member is separated from AD/AS, the 3-year obligation will begin on the day after the day on which the Service member completes his or her obligation pursuant to such section of law. (2) A Service member who enters into this written agreement and who is not qualified for appointment or enlistment in the Ready Reserves need not be enlisted or appointed by the Military Service concerned to be considered to have met this condition of eligibility for separation pay. e. The Service member has signed the following mandatory disclosure statement: "If I qualify for military retired or retainer pay in accordance with Title 10 or Title 14, United States Code, and/or the Department of Veterans Affairs disability compensation pursuant to the laws administered by the Secretary of Veterans Affairs after receiving Involuntary Separation Pay (known as "ISP"), I will be subject to a deduction from such retired or retainer pay, or from disability compensation in the total amount of any ISP paid, as prescribed under Section 1174 of Title 10, United States Code." f. Half Separation Pay (Non-disability). Half payment of non-disability ISP, computed as provided in Paragraph 3.2.b., is authorized to Service members of the Active and Reserve Components who are involuntarily separated from AD/AS and who meet each of the five conditions in the following paragraphs. In extraordinary instances, the Military Service concerned may award full ISP to Service members who are otherwise eligible for half ISP when the specific reasons for separation and the overall quality of the member’s service have been such that denial of such pay would be clearly unjust. (1) The Service member meets the criteria for active service specified in Paragraph 3.1.a.(1). (2) The Service member’s separation is characterized as "honorable" or "general (under honorable conditions)", and none of the conditions in Paragraph 3.4. apply. (3) The Service member is being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on AD/AS, or the Service member is being separated instead of board action as provided in DoDI 1332.30, under one of the following specific conditions: * The Service member is not fully qualified for retention and is denied reenlistment or continuation by the Military Service concerned, as provided for in DoDI 1332.14 or DoDI 1332.30 * Weight control failure * Parent or custody of minor child * Military personnel security program * Disability that existed before service * Mental or physical conditions and circumstances not constituting a disability * Alcohol or drug abuse rehabilitation failure * Failure to meet minimum retention standards g. The Service member is being separated under a Service-specific program established as a half-payment level by the Secretary of the Military Department concerned within the authority of Section 1174 of Title 10, U.S.C. h. The Service member, having been denied reenlistment, extension, or continuation on AD/AS by the Military Service concerned in accordance with Paragraphs 3.1.b.(3)(a) and 3.1.b.(3)(b), accepts an earlier separation from AD/AS. i. The Service member has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve, as provided for in Paragraph 3.1.a.(4). 2. COMPUTATION OF SEPARATION PAY. a. Full Separation Pay. (1) Full separation pay is 10 percent of the product of the number of years of active service and 12 times the monthly basic pay to which the Service member was entitled at the time of discharge or release from AD/AS. (2) For example, the formula for an E-5 Service member who qualifies for ISP and is separated after 8 years of active service may look like: 0.1((12 x $2,989.80 monthly base pay)(8)) = $28,702.08 full separation pay. Half Separation Pay. One-half of the amount computed in Paragraph 3.2.a. 3. Title 10, USC, section 1174 (b) Regular Enlisted Members – states: a. 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. b. Separation pay of an enlisted member shall be computed under paragraph (1) of subsection (d), except that such pay shall be computed under paragraph (2) of such subsection in the case of a member who is discharged under criteria prescribed by the Secretary of Defense. 4. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in 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) AR20220011782 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1