RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20060015082 


	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.


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	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 29 April 2004 discharge from the United States Army Reserve (USAR) be voided and that his records be corrected to show he was transferred to the Retired Reserve on that same date.  

2.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Separation Document (DD Form 214); 20-Year Letter, dated 5 November 2003; Physical Evaluation Board Proceedings (DA Form 199) with election; Transfer to an Inactive Status or Discharge with Severance Pay Memorandum, dated 17 March 2004; Medical Evaluation Board Proceedings; Medical Evaluation Board Narrative Summary; Medical Record Report; Neurology Report; MEB Consultation; IPacific Imaging Magnetic Resonance Imaging (MRI) Report ; Pacific Imaging Consultants Preliminary Report; Medication Profile; Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter); Enlistment/Reenlistment Document (DD Form 4); Circuit Court of Prince William County Court Order Name Change, dated 17 May 2001; and Headquarters, I Corps and Fort Lewis, Orders Number 100-0140, dated 9 April 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he initially enlisted in the United States Army Reserve (USAR), on 13 July 1978, for a period of 6 years and entered the Delayed Entry Program (DEP) in an inactive military status on that date.  

2.  On 18 July 1978, he enlisted in the Regular Army and entered active duty on that date.  He continuously served on active duty until being honorably separated on 3 May 1985.

3.  On 4 May 1985, the applicant was transferred to the, USAR Control Group to complete his military service obligation (MSO). He continuously served in USAR in various capacities until being honorably discharged, in the rank of staff sergeant (SSG), on 29 April 2004. 

4.  The applicant's record contains a Notification of Eligibility for Retired Pay at Age 60 Letter (20 Year Letter), dated 5 November 2003, which was issued by the United States Army Reserve Personnel Center (ARPERCEN).  This letter informed the applicant he had completed the required years of service and would be eligible to receive retired pay at age 60 upon application.  

5.  On 9 February 2004, a Medical Evaluation Board (MEB) found the applicant medically unfit and referred his case to a PEB for evaluation based on the following diagnosis:  (1) Diabetes Mellitus Type 2; (2) Left L5-S1 with radiculopathy; (3) Mild non-proliferative diabetic retinopathy; (4) Diabetic macular edema left eye; and (5) Degenerative disease of the lumbar spine.  The applicant concurred with the MEB’s findings and recommendation.  

6.  On 9 March 2004, a PEB convened at Madigan Army Medical Center, Tacoma, Washington to consider the applicant's case.  The PEB found the applicant's diagnoses 2-5 were not unfitting and not ratable conditions.  However, the PEB determined that the applicant's Diabetes Mellitus rendered him physically unfit for satisfactory performance of duty in his grade and primary specialty.  The PEB stated that the applicant's disability, which was incurred while he was serving in a Troop Program Unit (TPU) and existed prior to service and was not permanently aggravated by service, but is compensable in accordance with Title 10 United States Code (U.S.C.) Section 1207a (eight year rule), and recommended his separation by reason of disability (20 percent) with severance pay.  

7.  The Disability Description portion of the PEB Proceedings (DA Form 199) contained a statement indicating that since the applicant had more than 20 years of qualifying years for Reserve Retirement, he had the option of accepting disability severance pay and forfeiting his Reserve retirement, or to choose to be placed in an inactive Reserve status and receive Reserve Retired pay at the age of 60 by forfeiting his disability severance pay under the provisions of Chapter 67, Title 10 U.S.C.  It further indicated that if he elected to transfer to the Inactive Reserve for purpose of receiving Reserve retired pay at age 60, that no disability compensation would be computed because under the provisions of Chapter 61, Title 10 U.S.C. Section 1209 (10 USC 1209), an individual may not receive both disability benefits and retired pay for non-regular retirement.

8.  On 17 March 2004, the applicant concurred with the findings and recommendations of the PEB, and waived his right to a formal hearing.  He also completed an option statement that provided him the option of either being transferred to the Retired Reserve pursuant to 10 USC 1209, with entitlement to apply for retirement benefits upon reaching age 60 or to be discharged with entitlement to receive disability severance pay pursuant to 10 USC 1212.  The applicant elected to be discharged with severance pay and acknowledged that he understood this election was final, conclusive, and for all purposes could not be changed.  The applicant authenticated this document with his signature.  

9.  Headquarters, I Corps and Fort Lewis, Military Personnel Division, Orders Number 100-0140, dated 9 April 2004, directed the applicant's honorable discharge by reason of disability with severance pay based on a 20 percent disability rating.  

10.  On 29 April 2004, the applicant was honorably discharged, by reason of physical disability with severance pay, under the provisions of paragraph 
4-24b (3), Army Regulation 635-40.  The DD Form 214 he was issued confirms he completed a total of 12 years, 10 months, and 24 days of active military service and held the rank of staff sergeant.  

11.  In connection with the processing of this case, an advisory opinion was obtained from the Physical Disability Agency (PDA) Legal Advisory.  This official states the applicant was awarded 20 percent severance pay for his diabetes and that he concurred and waived his rights to a formal board.  Since the applicant did not qualify for disability retirement in accordance with Chapter 61, U.S.C. the applicant was required to be separated with severance pay.  Since the applicant was eligible for retired reserve pay at age 60, he could choose between the severance pay or receiving the retired pay at age 60.  In order to waive award of severance pay and remain eligible to receive Reserve retired pay the applicant was required to affirmatively make request for retired pay.  However, there is no evidence submitted by the applicant showing he made such a request.  This official further stated, lacking any evidence of specific error that the applicant's disability and separation process was improperly accomplished he recommended the applicant's request for transfer to the Retired Reserve be denied.  

12.  On 26 August 2007, the applicant submitted his rebuttal to the advisory opinion, in which he stated in effect, that he believes he was railroaded and unfairly discharged with no real consideration given that he had 20 years of creditable service, and that he was not awarded the correct amount of disability compensation by the Medical Evaluation Board (MEB).  He claims that he was told that because he did not have 20 years of qualifying active Army nor Army Reserve service that the MEB would not consider retaining him until he acquired the number of years needed to satisfy the years of service requirement or the 30 percent rule because he had already been extended from mobilized Army Reserve status to active Army duty in order for the MEB to complete the medical evaluation process of his board requirements.  He also claims he was told that although he could have appealed the MEB decision that his appeal would not change or have any effect towards the MEB decision to medically discharge him. 

13.  The applicant further claims he did not sign any documents acknowledging he had 20 years of service and that he waived his years of service in acceptance of being discharged with severance pay.  He states that he would not have knowingly given up more than 20 years of qualifying service for 20 percent service connected disability compensation from the Army.  He further states that he is now requesting that this injustice be corrected by correcting his military records and allowing him to be transferred to the Retired Reserve.  

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  Chapter 4 contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).   

15.  Chapter 4 of the same regulation further states that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

16.  Chapter 8 of the disability regulation contains the rules and policies for disability processing of RC Soldiers on active duty.  It states, in pertinent part, that a RC soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability. It further stipulates that in order for Soldiers of the RC to be compensated for disabilities incurred while performing duty for 30 days or less, there must be a determination made by the PEB that the unfitting condition was the proximate result of performing duty.  Proximate result establishes a casual relationship between the disability and the required military duty. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his military records should be corrected to show his transfer to the Retired Reserve with entitlement to Reserve retirement at age 60 based on the fact that he was not properly counseled during his PEB processing was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was properly processed through the PDES in accordance with the applicable laws and regulations.  It further shows that in the PEB Proceedings published on the applicant, he was fully advised that since he had 20 years of qualifying years of service for Reserve retirement, he had the option to be transferred to the Retired Reserve status and receive Reserve Retired pay at the age of 60, or to be discharged with entitlement to receive disability severance pay, which would result in his forfeiting his entitlement to Reserve retirement.   

3.  The evidence of record further confirms that on 17 March 2004, after concurring with the findings and recommendations of the PEB and waiving his right to a formal PEB, the applicant completed an option statement, in which he elected to be discharged by reason of disability with entitlement to severance pay instead of being transferred to the Retired Reserve to retain entitlement to Reserve retirement benefits at age 60, which it was his right to do.  In view of the facts of this case, and given after he was fully informed of his options, the applicant voluntarily elected to be discharged with entitlement to severance pay instead of transferring to the Retired Reserve, there is an insufficient evidentiary basis to support granting the requested relief at this late date. 

4.  In order to In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060015082
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/09/25
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
2004/04/29
DISCHARGE AUTHORITY
AR635-40
DISCHARGE REASON
Disability, severance pay 20%
BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
135.0100
2.

3.

4.

5.

6.