RECORD OF PROCEEDINGS


      IN THE CASE OF:  .


      BOARD DATE:        31 October 2006
      DOCKET NUMBER:  AR20060002412


      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             |
|     |Mr. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Mr. Bernard P. Ingold             |     |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, in effect, that his discharge with physical-
disability severance pay be revoked and that he be placed in the Individual
Ready Reserve (IRR) until he reaches his Mandatory Removal Date MRD.

2.  The applicant states, in effect, when his Temporary Disability Retired
List (TDRL) case was finalized at 10 percent disabled, he was discharged by
the U.S. Army Physical Disability Agency (USAPDA) and the Defense Finance
and Accounting Service (DFAS) electronically transferred severance pay into
his bank account.  He believes that as a Reserve Component (RC) Soldier he
was eligible to remain in the IRR until his MRD and that he should have
been transferred back to the IRR.  He was not given any options until
everything was messed-up.  He relates, in effect, that he informed the
USAPDA that he was a Reservist and that he should have been transferred
back to Human Resources Command, St Louis.  The USAPDA sent him an election
form and he elected retirement, but the process apparently stopped at that
point.

3.  In a telephone conversation the applicant indicated that he had not
used any of the disability severance pay, he was simply holding on to it
until the Defense Finance and Accounting Service (DFAS) asked for it back
and that his only interest is in obtaining the benefits and honor of being
retired.

4.  The applicant provides copies of discharge orders, dated 29 December
2003; a memorandum dated, 29 December 2003 from the USAPDA forwarding the
discharge documents; memoranda dated 26 January 2001 and 8 March 2004 from
the USAPDA with a subject line of,  “Election as to Disposition by Reason
of Physical Disability;” a Chronological Statement of Retirement Points,
dated
26 January 2001, showing a Service Computation for Retirement that
indicates the applicant had 13 years, 9 months, and 13 days of active duty.
 This statement also shows he had 21 years, 4 months, and 11 days of
creditable inactive service.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a career RC officer serving on active duty as a
lieutenant colonel, was found physically unfit due to lymphoma [a usually
malignant tumor of lymphoid tissue].  He was placed on the TDRL on 2
October 1999.  According to his DD Form 214 (Certificate of Release or
Discharge from Active Duty) he had 9 years, 8 months, and 2 days of total
active duty and 20 years, 7 months, and 22 days of prior inactive service.


2.  When his TDRL case was finalized at 10 percent disabled he was
discharged by the USAPDA, effective 29 December 2003.

3.  The 4 March 2004 memorandum from the USAPDA, which the applicant
submitted, notified him that the findings in his Physical Evaluation Board
case had been approved and informed him that he had the right to elect
transfer to the Retired Reserve or to accept discharge and receive
disability severance pay.  An election form was mentioned and listed as an
enclosure.

4.  During the processing of this case an advisory opinion was obtained
from the USAPDA.  The deputy commander noted that there was no evidence of
record that the applicant had been provided with the appropriate election
options.  The deputy commander also recommended that the applicant’s record
be corrected to show that he elected transfer to the retired reserve.

5.  The advisory opinion was forwarded to the applicant for comment or
concurrence and he concurred.

6.  Army Regulation 140-10 (Assignments, Attachments, Details and
Transfers) chapter 7, Removal from Active Status, provides, in effect, that
an officer may serve until the MRD except for certain cases that include,
“7-8.  Miscellaneous reasons for removal…Medically unfit (removal rule 8).
Exception number 6 applies.  Remove Soldiers when found medically unfit for
retention unless a waiver is granted (AR 40-501).

7.  [pic]Army Regulation 40-501 (Standards of Medical Fitness), paragraph 9-
10, provides that Reservists who do not meet the fitness standards set by
chapter
3 will, normally, be transferred to the Retired Reserve per Army Regulation
   140-10 or discharged from the USAR.  An individual will be transferred
to the Retired Reserve only if eligible and if the individual has applied
for it.  Reservists who do not meet medical retention standards may request
continuance in an active USAR status in accordance with paragraph 9-11.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was permanently disabled when he was released from active
duty and placed on the TDRL so that his condition could be fairly
evaluated.

2.  When his case was finalized, the applicant was found unfit and rated at

10 percent disabled.  He was discharged with severance pay.  When he tried
to get it straightened out he elected transfer to the Retired Reserve, but
the processing apparently stopped at that point.

3.  Under the governing regulations, Army Regulations 140-10 and 40-501,
the applicant could not have been transferred back to the Active Reserve
without a medical waiver.  There is no available evidence to indicate that
such a waiver would have been approved.

4.  The 29 December 2003 discharge should be voided and the applicant
transferred to the Retired Reserve with entitlement to Retired pay at age
60.

5.  The DFAS should provide the applicant with reliable information
concerning ramifications of accepting disability severance pay and allow
him to make an informed choice concerning that issue.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_JEA ___  _JAM ___  __BPI___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by

      a.  voiding the 29 December 2003 discharge;


      b.  transferring him to the Retired Reserve with entitlement to
Retired pay at age 60; and


      c.  providing him with reliable information concerning ramifications
of accepting disability severance pay and allowing him to make an informed
choice concerning that issue.


2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
transferring him to the IRR until his MRD.




                                  _     James E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002412                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061031                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |135.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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