MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 February 2003
         DOCKET NUMBER: AR2002076942

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Lawrence Foster		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his 2 May 1994 discharge be voided, that he be transferred to the Retired Reserve and that any debts incurred as a result of his receiving disability severance pay be forgiven.

APPLICANT STATES: In effect, that he was not properly counseled in regards to his options prior to his separation for physical disability. He further states that he appeared before a physical evaluation board (PEB) at Fort Lewis, Washington and was granted a disability rating of 20%. He was returned to Fort Carson, Colorado, for what he thought was a disability retirement; however, at the time of his separation he was given severance pay in the amount of $61,984.81 with no explanation of why he was receiving severance pay or the consequences of accepting severance pay. He continues by stating that he received his 20-year letter from the National Guard and attempted to get identification cards. However, he was informed that he was not entitled to any benefits and could not receive retired pay unless his severance pay was paid back. He also states that he has received a 90% disability rating from the Department of Veterans Affairs (VA) and they are taking back the severance pay from his benefits. He further states that he desires to have the offset provision waived by all agencies to include the VA because he cannot afford to pay the funds back and he does not believe it is fair that he and his wife be denied benefits that he earned during his 25 years of service.

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

He initially enlisted in the Regular Army on 23 October 1967 for a period of 3 years. He served 1 year of his enlistment in Vietnam and was honorably released from active duty on 22 October 1970. He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). He remained in the USAR until 4 March 1972, when he enlisted in the Army National Guard (ARNG). He continued to serve in the ARNG and was ordered to active duty in the Active Guard/Reserve (AGR) Program on 15 March 1981, where he remained until his discharge.

On 6 April 1994, the Department of the Army Physical Disability Agency dispatched a message to Fort Carson authorizing immediate discharge of the applicant by reason of physical disability at 20%, with entitlement to disability severance pay.

On 2 May 1994, the applicant was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24B(3), by reason of disability with severance pay. He had served 16 years, 1 month and 18 days of total active service and had 25 years, 1 month and 18 days of service for pay purposes. He was paid $61,984.81 in disability severance pay.

A review of the available records failed to show any of the PEB proceedings, elections statements or counselings during outprocessing that normally occur prior to separation.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It provides, in pertinent part, that a soldier may forfeit severance pay and be transferred to the Retired Reserve and receive nondisability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the Retired reserve is requested. According to the provisions of sections 1209 and 1213 of Title 10, United States Code, all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve. Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purpose of receiving retired pay. The Physical Disability Agency will notify soldiers processing for disability of their options. The notification/election letter will provide sufficient detail (verified years of service for severance pay and Reserve years of service for retirement) to assist soldiers in reaching an informed decision. An election once made is final and conclusive and may not be changed. A period of 7 days plus mailing time will be afforded to the individual soldier to make a decision/election. If the soldier does not respond, the soldier will be separated with severance pay.

That regulation also provides that the VA program for disability benefits is separate and distinct from the Army disability system. The VA makes its own decisions concerning entitlement to disability compensation and ratings based on the statutes and regulations, which govern its operation. The VA is not bound by the decisions of the Army; and likewise, the Army is not bound by VA decisions. When a soldier receives disability severance pay and is subsequently rated by the VA, the VA will deduct the entire amount of severance pay from any compensation received. At the discretion of the VA, the soldier may repay the entire amount in one lump sum or the VA may withhold the monthly compensation (or a portion thereof if the VA rates higher, until the total amount equals the amount of disability severance pay received.

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

1. In the absence of evidence to the contrary, it must be presumed that the applicant was properly briefed on his options regarding severance pay in accordance with the applicable regulations prior to his election and separation.

2. Accordingly, the Board must also presume, absent evidence to the contrary, that his separation was conducted in accordance with the applicable laws and regulations, with no violations of any of his rights.
3. The Board has noted the applicant's contentions regarding his having to pay back his severance pay to the VA before he can receive VA benefits. However, the Board does not have the authority to waive the dual compensation provision or direct the VA to do so. Accordingly, the Board can not grant his request.

4. Absent any evidence to suggest that the applicant was not fully advised of his options at the time of separation, the Board finds no evidence either in the evidence of record or the evidence submitted by the applicant which supports the applicant's contention that his separation was either in error or unjust.

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

___js ___ __reb ___ __lf ____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002076942
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/25
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1994/05/02
DISCHARGE AUTHORITY	AR635-40
DISCHARGE REASON	DISABILITY/SEV PAY
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177	108.0000/PD
2. 192	110.0300/REINSTATEMENT
3.
4.
5.
6.