APPLICANT REQUESTS:  Physical disability separation or retirement pay.  

APPLICANT STATES:  The applicant made no statement, other than referring to “St. Clair v. U.S.  

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was discharged from the Army at Fort Carson, Colorado and transferred to the Reserve reinforcement control group at St. Louis on 18 June 1992 in the pay grade of E-4.  He was discharged for the convenience of the government under the FY 92 early transition program, and awarded a special separation bonus (SSB) of $29,378.53.  He had a total of 13 years, 4 months, and 1 day of active service, and 4 years, 1 month, and 6 days of prior inactive service.  

Army policy and the Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntarily separated members.  The SSB is available to members who are retainable on active duty and request voluntarily separation from active duty prior to selection
for an involuntary separation.  Generally, to qualify for the SSB individuals must have served on active duty for more than 6 years prior to enactment of this law, served at least 5 years of continuous active duty preceding separation, and meet such other requirements as the Secretary may prescribe which could include requirements relating to years of
service, skill, and grade.  The SSB is a single, lump-sum payment equal to 15 percent of the annual base pay times the number of years on active duty.

In late 1991 and early 1992 the PERSCOM announced implementing instructions for the FY 92 enlisted voluntary early transition program and provided for the voluntary  release from active duty for specific categories of soldiers with monetary incentives authorized.  One of these incentives was a SSB, a lump sum payment equal to 15 percent of the soldier’s basic monthly pay, multiplied by 12 and multiplied again by the soldier’s years of service.  Soldiers approved for SSB must enter into a written agreement to serve in the Ready Reserve for a period of not less than three years.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

2.  In order to receive SSB, the applicant had to be retainable on active duty.  He could not have been retained on active duty if he was physically unfit.  There is no evidence to indicate that the applicant had any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION

						Karl F. Schneider
						Acting Director