RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060013441 


	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.  


x
	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 the records of her husband, a disabled service member (DSM), be corrected to show that he qualified for a 20-year   non-regular retirement before he was retired by reason of permanent disability. 

2.  The applicant states that her husband was medically retired with 19 years, 2 months and 14 days of service; however, she was not informed at the time that he was 9 months short of being vested in his retirement.  She goes on to state that had her husband  remained in the service he would have attained his retirement eligibility and his family would be entitled to full benefits when he reached age 60 and eligible for concurrent receipt.  She continues by stating that had she known at the time she would not have consented to his discharge and would have it appealed it to gain the time for the DSM to attain his 20 years of service.

3.  The applicant provides a copy of her power of attorney, a copy of a notice from the Defense Finance and Accounting Service regarding the recoupment of the Special Separation Benefit (SSB) from the DSM’s retired pay, a copy of the Physical Evaluation Board (PEB) proceedings and numerous other medical documents associated with the DSM’s condition.   

CONSIDERATION OF EVIDENCE:

1.  The DSM initially enlisted in the United States Army Reserve (USAR) San Juan, Puerto Rico on 7 September 1983 for a period of 6 years under the Delayed Entry Program (DEP).  On 9 September 1983, he enlisted in the Regular Army for a period of 4 years, training as a personnel records specialist and assignment to Europe.

2.  He remained on active duty through a series of continuous reenlistments until he was honorably discharged on 29 September 1992, under the provisions of Army Regulation 635-200, paragraph 16-8 and the SSB Program.  He had served 9 years and 29 days of total active service and was paid $19,702.44 in SSB payments.  He enlisted in the USAR on 30 September 1992 for a period of 3 years, as a condition of receiving SSB benefits.

3.  The DSM did not actively participate in the USAR and did not attain qualifying years of service from the Retirement Year Beginning Date of 30 September 1992 through the Retirement Year Ending (RYE) on 10 April 1996.    

4.  The applicant was serving in a USAR Troop Program Unit (TPU) as a construction engineer supervisor in the pay grade of E-6 when he was ordered to active duty on 24 January 2003, in support of Operation Enduring Freedom.  He served in Kuwait and Iraq from 10 April 2003 to 11 April 2004.   

5.  On 29 April 2003, while on ordinary leave prior to discharge, the DSM was involved in a motor vehicle accident in Tucson, Arizona and suffered a severe head injury as well as skeletal injuries.  He was treated at University Hospital in Tucson and was then transferred to William Beaumont Army Medical Center (WBAMC) at Fort Bliss, Texas, for further treatment.  

6.  On 22 March 2005, a Medical Evaluation Board (MEB) was convened at WBAMC which found that the DSM did not meet retention standards and recommended that he be referred to a Physical Evaluation Board (PEB).  The applicant, acting on the DSM’s behalf, concurred with the findings and recommendations of the MEB on 25 April 2005.      

7.  On 9 May 2005, a PEB was convened at Walter Reed Army Medical Center (WRAMC) which found the DSM to be 100% disabled and recommended that he be retired by reason of permanent disability.  The applicant, acting on the DSM’s behalf, concurred with the findings and recommendation of the PEB and waived a formal hearing of his case on 18 May 2005.

8.  On 24 June 2005, the DSM was retired by reason of permanent physical disability with a 100% disability rating.

9.  A review of the Retirements Points Sheet provided by the applicant with her application shows that as of 8 April 2005, the DSM had 18 qualifying years of service for non-Regular Retired Pay purposes.

10.  Title 10, United States Code, section 641, provides, in pertinent part, for the phase-in of full concurrent receipt of military retired pay and veterans disability compensation for certain retirees, effective 1 January 2004.  Section 1414 (b) provides, in pertinent part, for special rules for chapter 61 disability retirees.  It provides that disability retirees with less than 20 years of service otherwise creditable under section 1405 or section 12732 are not entitled to both retired pay and veteran’s disability compensation.

DISCUSSION AND CONCLUSIONS:

1.  While the Board understands the applicant’s contention that had she known of the provisions of concurrent receipt, she would not have agreed to the DSM’s discharge at the time and would have filed an appeal in order to stall for additional time for the DSM to attain his 20 qualifying years of service, that was not then nor is it now a basis for appealing the findings and recommendations of the PEB.   

2.  Although the Board regrets that the DSM was injured before attaining 20 qualifying years of service for a non-regular retirement, it would be inappropriate to grant him additional service credit that was not earned prior to his disability retirement.  To do so would afford him a benefit that others in similar circumstances may also desire and are not afforded.     

3.  It is also noted that while the DSM had over 20 years of service for pay purposes at the time of his disability retirement, he did not have creditable years of service from 1992 to 1996.  Accordingly, the Board will not attempt to establish his entitlement to Department of Veterans Affairs benefits, nor will it alter his record to satisfy that agency’s service requirements in order to establish additional benefits.

4.  The Board wants the applicant and the DSM to know that this action in no way diminishes the sacrifices made by the DSM in service to the Nation.  The DSM and all Americans should be justifiably proud of his service in arms.     

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x____  _x__  ___x__ 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.


___x___
          CHAIRPERSON


INDEX

CASE ID
AR20060013441
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.135.0200
334/RET PTS
2.

3.

4.

5.

6.