RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 November 2006
      DOCKET NUMBER:  AR20060004018


      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 B. Gunlicks             |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |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).

1.  The applicant requests, in effect, that the reason for her husband’s
discharge be changed from disability retirement to retirement due to length
of service so that he may be eligible to receive “Concurrent Receipt
Pension” correctly known as Concurrent Retirement and Disability Payment
(CRDP).

2.  The applicant states, in effect, that her husband, the former service
member (FSM) was incapable of making an informed decision and could not
appreciate that he might have been better off taking regular retirement.
He would be able to receive benefits under the concurrent receipt program.
She relates that the VA informed her in a telephone call that she should
apply to the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides copies of her 28 February 2006 letter to the
President; a 6 March 2006 letter from the White House Director of
Correspondence; a 29 August 1992 memorandum from the Vice Chief of Staff of
the Army; a durable power of attorney, the FSM’s DD Form 214 (Certificate
of Release or Discharge from Active Duty), his retirement orders; a 23 June
1993 letter from the Department of Veterans Affairs (VA); rating decisions
from the VA showing the FSM  is 100 percent disabled due to dementia and
associated problems; orders from Fort Lesley J. McNair, Washington, DC,
dated 26 October 1992, transferring the FSM to the Transition Point for
separation processing with a reporting date of 7 November 1992, the date of
his retirement.

CONSIDERATION OF EVIDENCE:

1.  The FSM was a Regular Army sergeant first class on active duty.  On
7 November 1992 he was separated from active duty and placed on the retired
list due to physical disability because of organic brain and associated
mental problems.  He had 18 years, 11 months, and 5 days of active duty
service.  He was 38 years old.

2.  On 23 June 1993 the VA rated the applicant’s combined disabilities at
100 percent due to dementia, organic affective disorder, depression, and
claimed Alzheimer’s and atrophy of the cortex of the brain.  He was also
rated at 20 percent for back problems and 10 percent for asthma and
sinusitis.

3.  The pertinent documents submitted by the applicant in support of the
case indicate the following additional information:

      a.  The applicant’s letter to the President notes that 15-year
retirement was available at the time, but this option was not made
available to her husband.

      b.  The memorandum from the Vice Chief of Staff praised the FSM’s
attitude and abilities, and also described the dramatic, rapid
deterioration of his abilities and personality.  The general concludes,
“…the disease…has totally transformed him from a very professional, capable
nom-commissioned officer, the best in his field…to a confused, depressed
man needing constant supervision.”

      c.  The letter from the White House informed the applicant that they
were referring her correspondence to the VA.

4.  Army Regulation 635-40 (Physical Evaluation), paragraph 3-10 provides
the guidance for continuation of Soldiers determined unfit due to physical
disability.  Chapter six provides that a Soldier determined to be
physically unfit by the Physical Disability Evaluation System may be
deferred from disability separation or retirement when it is determined
that the Soldier can still serve effectively with proper assignment
limitations.

5.  Title 10 of the United States Code, section 3914 provides the legal
authority for the Secretary of the Army to retire an enlisted member of the
Army who has at least 20, but less than 30, years of service.  Public Law
102-484 provided Temporary Early Retirement Authority (TERA) by authorizing
the Secretary of the Army, during the period beginning October 23, 1992,
and ending October 1, 1995, to apply this section to an enlisted member
with at least 15 but less than 20 years of service by substituting ''at
least 15'' for ''at least 20.''  TERA authority was subsequently extended
to cover the period through 31 December 2001 via Public Law 105-206.  In
practice early retirement pay is paid for twice as long as the individual
served.

6.  CRDP, as established by the Fiscal Year (FY) 2004 National Defense
Authorization Act (NDAA), provides a 10-year phase-out, for members whose
combined disability rating is 50% or greater, of the reduction VA
disability compensation because of the receipt of retired military pay.
The provision for CRDP does not apply to members who retired with less than
20 years service.  Recently, there has been questions raised about the CRDP
status of individuals who retired early under TERA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not qualify for traditional (20 or more years)
retirement due to length of service.  He apparently was incapable of
performing any duties, so he could not have been retained until he reached
20 years of active duty service.
2.  Given the time frame of the of events, the 15-year retirement became
effective 23 October 1992 and the FSM was transferred for separation
processing on 7 November 1992, the day he was separated; it is reasonable
to accept the applicant’s assertion that this option was not made available
to the FSM.  However, given the provisions applicable to early retirement;
the FSM was 38 years old and would receive retired pay for only 38 years;
he might well outlive such retirement benefits.

3.  It is the practice of the ABCMR not to make an applicant any worse off.
 Granting a 15-year retirement may make the applicant worse off and would
certainly not be promoting justice.  It must be remembered that a military
retiree will get their earned retirement pay; it is the VA disability
benefit that is reduced.  Thus, CRDP is ultimately a question for the VA.

4.  If after confirming the amount and duration of the retirement payable
to the FSM and satisfying herself that a 15-year retirement is now
advantageous and CRDP is applicable to the FSM’s situation, the applicant
may, if she so desires, apply for reconsideration.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JBG__  __EEM___  __SWF__  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.



                                  __      James B. Gunlicks_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060004018                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061102                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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