RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 June 2007
      DOCKET NUMBER:  AR20070001192


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 records be corrected to show he retired
under the temporary early retirement authority (TERA).

2.  The applicant states that at the time he was discharged he had a
profile but was not afforded any physical therapy or a Medical Evaluation
Board (MEB).  A Physical Evaluation Board (PEB) was completed in late 2006.
 He was found to be not eligible for a medical retirement, but the PEB
stated that he could have qualified to be retired under the TERA.

3.  The applicant provides a 23 January 2007 letter to his Congressman; a
DA Form 199 (Physical Evaluation Board (PEB) Proceedings); a
16 October 2006 letter from the U. S. Army PEB, Tacoma, WA; an
18 October 2006 letter to the U. S. Army PEB, Tacoma, WA; a 20 October 2006
letter from the U. S. Army PEB, Tacoma, WA; and a copy of his DD Form 214
(Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 July 1982.  He was
promoted to Staff Sergeant, E-6 on 1 August 1989.  He last reenlisted on 13
July 1995 for 6 years.

2.  On 16 December 1996, the applicant injured his right shoulder.  On   18
April 2000, he saw a civilian doctor for complaints of numbness and
tingling into his fingertips on his right hand, and he was diagnosed with
findings suggesting mild/early right carpal tunnel syndrome.

3.  Around June 2000, the applicant was alerted for assignment to Korea.
He refused to take the necessary action to meet the length of service
requirement needed for the assignment and apparently signed a declination
of continued service statement.

4.  On 12 October 2000, the applicant underwent surgery for carpal tunnel
syndrome.  On 5 June 2001, he underwent right shoulder surgery.  On
6 July 2001, he was issued a permanent physical profile due to his right
shoulder pain.  An orthopedic surgeon signed the profile and did not
recommend the applicant for referral to the physical disability system.

5.  On 12 July 2001, the applicant was discharged upon the expiration of
his term of service with a narrative reason of non-retention on active duty
(because he had signed a declination of continued service statement).  He
had completed 19 years and 4 days of creditable active service.

6.  In October 2001, the applicant applied to this Board and requested that
his records appear before an MEB and that he be retired by reason of
physical disability.  On 21 May 2002, in Army Board for Correction of
Military Records (ABCMR) Docket Number AR2001064467, the Board recommended
that the applicant receive a fitness for duty examination and, if found to
be not medically qualified for retention, that he be referred to the
physical disability processing system.

7.  On 16 October 2006, an informal PEB found the applicant to be unfit due
to chronic right shoulder pain and recommended separation with a 10 percent
disability rating and severance pay.  The applicant nonconcurred, did not
request a formal hearing, and indicated he submitted a written appeal.  His
appeal apparently was his letter dated 18 October 2006 (see below).

8.  In a 16 October 2006 letter to the U. S. Army Physical Disability
Agency, the U. S. Army PEB, Tacoma, WA cited a few issues it believed the
ABCMR should consider in the applicant’s case:

      If the applicant had received a medical extension, he should have
      received physical therapy for up to six months prior to a medical
      board.  In that case, the applicant may well have had 19 years and 9
      months service by the time he reached a PEB in which case he would
      have been recommended for permanent retirement and retired with 10
      percent disability at 20 years of service;

      If the applicant’s case had reached the PEB prior to the applicant
      having 19 years and 9 months in service, he would have been evaluated
      under the presumption of fitness criteria.  The date of his Narrative
      Summary would almost certainly have been later than      9 July 2001,
      as his draft permanent profile was dated 6 July 2001 and on 9 July
      2001 he would have been within one year of his mandatory retirement
      date.  As his condition was not acute or grave he would have been
      found fit and allowed to remain on active duty until he had 20 years
      active Federal service.

      If the applicant’s Narrative Summary had somehow been dated prior to 9
      July 2001, the PEB would have recommended separation with severance
      pay; however, he could have applied for continuation on active duty
      (COAD) to reach 20 years service.
      If the applicant’s COAD request had not been approved, he would have
      been eligible to apply for retirement with           19 years service
      under the TERA which was in effect in 2001.

9.  In an 18 October 2006 letter to the U. S. Army PEB, Tacoma, WA,
the applicant requested retirement under the TERA effective 9 July
2001.  By letter dated 20 October 2006, the U. S. Army PEB, Tacoma, WA
informed him it did not have the authority to approve his request but
the ABCMR would make the final determination.

10.  On 21 June 2007, the applicant informed the Board analyst that he
would like his request changed to retirement under the TERA effective
12 July 2001.

11.  In the processing of this case, an advisory opinion was obtained from
the Retirements and Separations Branch, U. S. Army Human Resources Command.
 That office obtained information that if a Soldier had over      15 years
of service and had been found unfit with a disability rating of less than
30 percent then the Soldier would have been approved for TERA provided the
determination was made prior to 31 December 2001.

12.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  On 1 May 2007, he concurred with the advisory
opinion.

13.  Title 10, U. S. Code, section 1315 provided the TERA for the active
force for the period 23 October 1992 through 31 December 2001.  The
Secretary of the Army could authorize a member with at least 15 but less
than 20 years of creditable service a length of service retirement.  The
Army did not utilize this provision of the law during fiscal year 2001
except for members who were recommended for discharge due to physical
disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that his records be corrected to show he
retired under the TERA, and in his 18 October 2006 letter to the U. S. Army
PEB, Tacoma, WA, he requested retirement under the TERA effective 9 July
2001.  He has since requested retirement under the TERA effective 12 July
2001, the date he had been discharged from the Army.

2.  The law provided the TERA for the active force for the period
  23 October 1992 through 31 December 2001.  Although the Army did not
utilize this provision of the law during fiscal year 2001 for all members,
it did utilize it for members who, like the applicant, were recommended for
discharge due to physical disability provided the determination was made
prior to 31 December 2001.

3.  Therefore, it would be equitable to correct the applicant’s records to
show  that he was released from active duty on 12 July 2001 for the purpose
of early retirement under the TERA, with a type of separation of “Voluntary
Early Retirement,” a separation authority of “AR 635-200, chapter 12,” a
separation code of “RBE” (voluntary early retirement under the provisions
of Army Regulation 635-200, chapter 12 or other retirement programs), and a
reentry code of “4” (required for Soldiers separated by reason of
retirement) and that he was placed on the retired list in the rank and
grade of Staff Sergeant, E-6 effective 13 July 2001.

4.  A Survivor Benefit Plan (SBP) election must be made prior to the
effective date of retirement or the SBP will, by law, default to automatic
SBP spouse coverage (if married).  This correction of records may have an
effect on the applicant’s SBP status/coverage.  The applicant is advised to
contact his nearest Retirement Services Officer (RSO) for information and
assistance immediately.  A listing of RSOs by country, state, and
installation is available on the Internet at website
http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

__jea___  __jlp___  __jbm___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

     a.  voiding his discharge of 12 July 2001;

     b.  showing he was released from active duty by reason of voluntary
early retirement and placed on the retired list in the rank and grade of
Staff Sergeant, E-6 effective 13 July 2001; and

     c.  issuing to him a new DD Form 214 (Certificate of Release or
Discharge from Active Duty) showing the type of separation as “Voluntary
Early Retirement,” the separation authority as “AR 635-200, chapter 12,”
the separation code as “RBE,” and the reentry code as “4.”




                                  __James E. Anderholm__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001192                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070626                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |136.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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