RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 23 MARCH 2004
DOCKET NUMBER: AR2004105186
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Ms. Deborah L. Brantley | |Senior Analyst |
The following members, a quorum, were present:
| |Mr. Thomas D. Howard, Jr. | |Chairperson |
| |Ms. Karen A. Heinz | |Member |
| |Mr. Lawrence Foster | |Member |
The applicant and counsel if any, did not appear before the Board.
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his 10 June 2003 discharge and placement on
the Temporary Disability Retired List (TDRL) be reinstated. He also asks
that he be allowed to retain his promotion to pay grade E-5.
2. The applicant states that he has been drawing disability pay from the
Department of Veterans Affairs (VA) since last July and was unaware that he
could not draw active duty pay and VA disability pay at the same time.
3. The applicant provides a copy of the Board's 4 March 2004 action, which
voided his 10 June 2003 discharge action.
CONSIDERATION OF EVIDENCE:
1. The applicant was an active duty Soldier serving in pay grade E-4 when
he was seriously wounded in action on 10 June 2003 while in Iraq. As a
result of the seriousness of his injuries, action was taken, under a
procedure known as IDP (Imminent Death Processing), to discharge him and
place his name on the TDRL. The applicant was ultimately evacuated to
Walter Reed Army Medical Center where he continues to undergo treatment and
therapy.
2. In spite of the fact that the applicant was discharged and his name
placed on the TDRL, he continued to draw full pay and allowances as though
he were still in an active duty status. His former unit also promoted him
to pay grade E-5 in August 2003.
3. When the error was discovered, action was taken by the Board, at the
applicant's request, to revoke the 10 June 2003 discharge action and
restore him to an active status in order to preclude the applicant from
having to pay back the difference between his active duty pay (roughly
$2000.00 per month) and what he should have been receiving in disability
payments from the Army (estimated at approximately $1500.00). That Board
action was accomplished on 4 March 2003 (AR2004103548). The Board also
validated the applicant's E-5 promotion as part of their action.
4. However, it has now been learned that in addition to drawing full pay
and allowances as though he were still on active duty, he has also been
receiving disability payments from the VA. The VA disability payments, a
non-taxable income, would have exceeded the applicant's active duty pay.
While the exact amount of the applicant's VA payments are unknown, veterans
with disabilities rated at 100 percent receive compensation in the amount
of $2,239.00 per month, with additional amounts awarded to veterans, like
the applicant, who have severe disabilities.
5. In order to receive disability compensation from the VA, the applicant
must have been discharged from the military. The applicant cannot draw
both active duty pay and VA disability compensation at the same time.
6. Army Regulation 600-8-19 (Enlisted Promotions) provides for the
promotion of Soldiers who are on a recommended list for promotion to pay
grade E-5 or E-6 when they are hospitalized as a result of a disease or
injury received in the line of duty and when their life expectancy is 12
months of less. Medical facility commanders are authorized to promote such
individuals.
DISCUSSION AND CONCLUSIONS:
1. Although the intention of the Board's previous action was to preclude
the applicant from having to repay the difference between his active duty
pay and what he should have been receiving in disability payments from the
Army, that action has now resulted in the applicant being ineligible for
the VA payments which he has been receiving since July 2003.
2. Because his VA entitlements would have far exceeded his active duty
payments, the applicant has now been placed in a worse financial situation.
In order to rectify that situation, it would be appropriate to grant the
applicant's request to rescind the Board's 4 March 2004 action and
reinstate his discharge and placement on the TDRL.
3. Reinstating the applicant's discharge and placement on the TDRL would,
by default, result in voiding his August 2003 promotion to pay grade E-5.
As such, the argument could be made that based on the applicant's imminent
death situation in June 2003, the medical treatment facility commander
could have promoted the applicant to pay grade E-5 as part of the imminent
death processing procedures. As such, in the interest of justice, it would
be appropriate to promote the applicant to pay grade E-5 at the time his
name was placed on the TDRL.
BOARD VOTE:
__TDH __ __KAH__ __LF ___ GRANT RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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 by:
a. rescinding the Board’s 4 March 2004 action; and
b. promoting the applicant to pay grade E-5 effective with the
placement of his name on the TDRL.
_Thomas D. Howard, Jr.__
CHAIRPERSON
INDEX
|CASE ID |AR2004105186 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20040323 |
|TYPE OF DISCHARGE |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
|DATE OF DISCHARGE |YYYYMMDD |
|DISCHARGE AUTHORITY |AR . . . . . |
|DISCHARGE REASON | |
|BOARD DECISION |GRANT |
|REVIEW AUTHORITY | |
|ISSUES 1. |108.00 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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