RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20060000043


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      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 disability severance pay be reinstated.

2.  The applicant states the civilian handling his case recommended he not
take the 10 percent severance pay because he would have to pay it back when
he started to receive his retired pay.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 21 August 2005 and his DA
Form 199 (Physical Evaluation Board (PEB) Proceedings).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 24 October 1954.  After having had prior
service  in the Regular Army and the Army National Guard, he transferred to
the U. S. Army Reserve in 1987.  His notification of eligibility for
retired pay at age 60 (his 20-year letter) was issued on 1 September 2004.

2.  On 27 January 2003, the applicant was ordered to active duty in support
of Operation Enduring Freedom.  He was promoted to Sergeant First Class, E-
7  effective 1 November 2003.

3.  The applicant’s Medical Evaluation Board proceedings are not available.
 On 11 February 2005, an informal PEB found him to be physically unfit due
to partial complex seizure disorder (10 percent); chronic low back pain
secondary to multilevel degenerative disc disease without tenderness on
examination, radiculopathy, or muscle spasm (zero percent); and chronic
neck pain due to multilevel degenerative disc disease, without tenderness
on examination, radiculopathy or muscle spasm and with no significant loss
of range of motion (zero percent).  The informal PEB recommend he be
separated with severance pay.

4.  The DA Form 199 noted the applicant had at least 20 qualifying years
for a Reserve retirement.  He had the option of accepting disability
severance pay and forfeiting his Reserve retirement or he could choose to
be placed in an inactive
Reserve status and receive Reserve retired pay at the age of 60.  If he
elected transfer to the inactive Reserve for the purpose of receiving
Reserve retired pay at age 60, no disability compensation would be
computed.  He was advised to contact a Department of Veterans Affairs (VA)
counselor to learn about available benefits to include disability
compensation.

5.  The DA Form 199 indicates the applicant did not concur and demanded a
formal hearing, although he did not sign the DA Form 199.  No other PEB
paperwork is available.

6.  On 21 August 2005, the applicant was released from active duty after
completing a total of 6 years, 6 months, and 18 days of creditable active
service.

7.  Title 10, U. S. Code, section 1209 states any member of the armed
forces who has at least 20 years of service [for a reserve retirement] and
who would be qualified for disability retirement but for the fact that his
disability is less than
30 percent may elect, instead of being separated, to be transferred to the
inactive status list under section 12735 of this title and, if otherwise
eligible, to receive [reserve] retired pay upon becoming 60 years of age.

8.  Title 10, U. S. Code, section 1212(c) states the amount of disability
severance pay received shall be deducted from any compensation for the same
disability to which the former member becomes entitled under any law
administered by the VA.  Thus, VA compensation may be withheld as an offset
on a monthly basis until the total amount of military severance pay has
been recovered.

9.  Title 10, U. S. Code, section 1213 states that, unless a person who has
received disability severance pay again becomes a member of an armed force
he is not entitled to any payment from the armed force from which he was
separated for, or arising out of, his service before separation, under any
law administered by one of those services or for it by another of those
services.

DISCUSSION AND CONCLUSIONS:

The applicant was properly informed of the consequences of accepting
severance pay instead of retired pay at age 60.  By law, had he elected to
receive severance pay, he would not be entitled to receive retired pay at
age 60. The applicant fails to provide evidence of error or injustice in
this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __jcr___  __eem___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000043                           |
|SUFFIX                  |                                        |
|RECON                   |20060727                                |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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