RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR20070003369 


	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

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Ms. Ann Campbell

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jeffrey Redmann

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 status be changed from discharged to transfer to the United States Army Reserve inactive status and then he be allowed to draw his reserve retirement pay at age 60.  He also requests that the monies paid to him as severance pay be collected from his retirement pay upon his application for retirement pay at age 60.   

2.  The applicant states, in effect, that he was removed from the Temporary Disability Retired List (TDRL) on 7 December 2005 and paid $142,408.80 in severance pay.  He states, in effect, that he did not make this election nor was he given the option as required by regulatory guidance to transfer to the Retired Reserve based on his eligibility and receipt of a 20-year United States Army Reserve (USAR) Retirement Letter.  He states he was not formally counseled after his final appeal to the Physical Disability Agency nor did he in writing request the severance pay.  

3.  The applicant provides copies of his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings and appeals with supporting documents, his notification of eligibility for retired pay from the USAR, copies of medical documents, officer evaluation reports, military orders and personal financial pay documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a commissioned officer in the USAR.  He was branched Military Police Corps.  He had served in the Regular Army, USAR, and on active duty in an Active Guard Reserve Program (AGR) status.  He was born on 13 October 1955. 

2.  On 30 October 1996, United States Army Reserve Personnel Command (ARPERSCOM) published a memorandum notifing the applicant that he was eligible for retired pay at age 60.  He had completed 20 years of qualifying service under the provisions of Title 10, Untied States Code (USC), chapter 67. 

3.  On 19 April 1999, he entered active duty in the AGR program as the Battalion Operations Officer with the 400th Military Police Battalion stationed at Fort Meade, Maryland.  Initially his AGR tour was for 3 years, and then on 14 March 2002, ARPERSCOM published an order amending his AGR or active duty tour length to indefinite status in the AGR program.

4.  In November 2002, the applicant's unit received alert notification orders for potential mobilization in support of the Global War on Terrorism.

5.  On 23 January 2003, a MEB referred the applicant to a PEB.  The MEB findings were that the applicant was not medically fit for continued service on active duty.  The applicant appealed the MEB findings and recommendation.  On 23 July 2003, the MEB approving authority denied the applicant's appeal and confirmed the MEB findings and recommendation of medically unfit for continued service on active duty.

6.  On 15 May 2003, in preparation for the initial PEB, a personnel records custodian certified that the applicant had not submitted an application for nondisability retirement based on his length of service or receipt of his 20-year retirement eligibility memorandum.  

7.  On 28 July 2003, a PEB conducted at Washington, DC, found that the applicant was physically unfit and recommended a physical disability rating of 30 percent.  The PEB recommended placement on the Temporary Disability Retirement List (TDRL) with reexamination in March 2005.  The PEB recommended findings were that the applicant's TDRL placement was not due to injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law.  Additionally, the PEB found the disability did not result from a combat related injury as defined under the provisions of Title 26, USC, Section 104.

8.  On 14 August 2003, the applicant concurred with the PEB recommendations and findings.  At this time, he waived a formal hearing and accepted temporary disability retirement and was placed on the TDRL. 

9.  On 21 April 2005, the applicant received a periodic medical and psychiatric TDRL evaluation at Walter Reed Army Medical Center (WRAMC) in preparation for a TDRL medical evaluation.  The medical examiner's diagnosis was Panic Disorder without Agoraphobia.  This condition is medically unacceptable for continued service on active duty under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3-33. 

10.  On 4 May 2005, the TDRL concluded the applicant was not fit for retention based on the psychiatric evaluation conducted on 21 April 2005.  The TDRL MEB recommended the applicant be considered for permanent retirement.  Further findings were the applicant was competent to handle all financial affairs and to participate in board proceedings.  The board referred the applicant to a PEB for final disposition.  The approval authority approved the MEB's findings and recommendation.

11.  On 18 May 2005, the applicant reviewed the TDRL evaluation board findings and recommendations.  He disagreed with these TDRL findings and recommendations and presented a written appeal.  In his narrative, self-authored appeal, the applicant disagreed with the evaluating psychiatrist's narrative summary.  The psychiatrist stated, in effect, that the applicant had not sought continuous medical treatment from WRAMC.  The applicant sought medical support and treatment from the Fort Meade (Maryland) military medical treatment facility (MTF) during the two-year period from his initial PEB.  This installation was the closet MTF to his home of record and place of employment.  The psychiatrist wrote the applicant's medical disorder did not appear to substantially affect his ability to perform his civilian job.   The applicant disagreed with this statement and provided an employment history of absences that he said were a direct result of his disability.  He also said he was being treated for heart palpitations due to his disorder.  He concluded by saying he partially agreed with the medical examining officer's evaluation.  

12.  On 19 September 2005, the PEB met and recommended the applicant's name be removed from the TDRL, as he was physically unfit with a combined disability rating of 10 percent.  The PEB recommendation was separation with severance pay.  The findings and recommendations of the PEB are annotated on DA Form 199 (Physical Evaluation Board (PEB) Proceedings).  Item 8b (Disability Description) of the PEB findings states, in effect, that a rating of less than 30 percent for Soldiers with less than 20 years of active service requires separation with severance pay in lieu of retirement.  The narrative continues, "You may qualify for retired pay for Non-Regular service in accordance with AR 138-180, chapter 2".  Further, the PEB shows in written narrative that he had the option of accepting disability severance pay, which then forfeits his reserve retirement or he could request transfer to the inactive reserves and receive reserve retired pay at age 60 with no disability percentage computed.  

13.  On 5 October 2005, the applicant did not concur with the PEB findings and recommendations and demanded a formal PEB hearing with personal appearance.  He did not attach a personal statement when he nonconcurred with the PEB findings.  He did elect to have counsel of his choice present at the formal hearing.  The applicant completed Item 13 (Election of Soldier) of DA Form 199.  

14.  On 28 October 2005, the applicant appeared before the formal PEB hearing with legal counsel present.  He left prior to completing a "Formal Election Statement of Understanding" memorandum.  The memorandum, written in the first person, authorized the applicant 10 days to file an election and a written rebuttal to his PEB findings and recommendations.  

15.  On 14 November 2005, the applicant prepared a formal appeal to the PEB recommendations and findings of 28 October 2005.  In his rebuttal memorandum, he rebuts the PEB finding of 10 percent disability from the TDRL rating of 30 percent disability dated 5 October 2003.  The applicant states, in effect, that he medically meets the disability rating of 30 percent as initially determined by his MEB in 2003.  He refutes by line item each subparagraph of the Veterans Affairs Schedule for Rating Disabilities Classification for a 30 percent disability rating in comparison to the 10 percent rating for his specific disability.  The applicant did not address the PEB recommendation of separation with severance pay in his written rebuttal. 

16.  On 30 November 2005, the United States Army Physical Disability Agency denied the applicant's appeal of his disability rating percentage as determined by the PEB formal hearing on 28 October 2005.  The USAPEB states, in effect, that the applicant provided no new substantive medical information to support changing their initial decision.  The board affirmed the decision of the formal hearing conducted on 28 October 2005 and found no basis to change the hearing findings and recommendations.  

17.  On 7 December 2005, the United States Army Physical Disability Agency (USAPDA) denied the applicant's appeal to the formal PEB hearing.  The USAPDA noted the applicant's disagreement with the PEB findings and recommendations; however, the USAPDA determined the applicant's case was properly adjudicated and upheld the findings and recommendations of the PEB. 

18.  On 7 December 2005, the USAPDA removed the applicant from the TDRL and discharged him from the service with a 10 percent disability rating.  Orders D341-03, published by the United States Army Physical Disability Agency, dated 7 December 2005, provided additional instructions to the applicant which shows he was entitled to severance pay provided he had completed over 6 months of active service.  

19.  On 28 December 2005, records show the applicant received net severance pay of $105,144.28.

20.  A review of the applicant's PEB proceedings, appeals and supporting documents indicates the applicant was not afforded a final opportunity to elect transfer to the Retired Reserve or elect discharge with entitlement to disability severance pay after his final appeal to the Army Physical Disability Agency.  

21.  In the preparation of this case, the USAPDA records custodian was contacted and the applicant's case management files were retrieved.  The search produced no evidence to show the applicant was counseled separately in writing under the provisions of Army Regulation 635-40, paragraph 4-20c that would have informed the applicant when placed on the initial TDRL that future TDRL reexaminations could be reduced to separation with severance pay.  There is no evidence to show that the applicant was counseled or offered transfer to the Retired Reserve after his final appeal was adjudicated prior to execution of the PEB disposition instructions.  

22.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

23.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

24.  Title 10, United States Code, section 1209, provides for a member of the armed forces who has at least 20 years of service computed under section 12732 of this title, and who would be qualified for retirement under this chapter but for the fact that his disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination, may elect, instead of being separated under this chapter, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive retired pay under section 12739 of this title upon becoming 60 years of age.

25.  Title 10, United States Code, section 1213, states a Soldier is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation, under any law administered by one of those services or for it by another of those services.  However, this section does not prohibit the payment of money to a person who has received disability severance pay, if the money was due him on the date of his separation or if a claim by him is allowed under any law.

26.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

27.  Army Regulation 635-40, (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, when a Soldier has a disability rating of less than 30 percent and is found unfit for continued service and has at least 20 years of qualifying years for retirement for non-regular service they have the option of accepting the discharge with disability severance pay and forfeiting retirement for non-regular service.  Alternatively, the Soldier can request transfer to the Retired Reserve and receive retired pay at age 60. 

28.  Army Regulation 635-40, states, in pertinent part, a Physical Evaluation Board Liaison Officer (PEBLO) will be appointed and counsel Soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the Soldier to a MEB and until final disposition is accomplished.  Counseling between the PEBLO and the Soldier will be documented on DA Form 5893-R (PEBLO Counseling Checklist/Statement).  At the time of the Soldier's final election to PEB determinations, the PEBLO and Soldier will sign the form.  A copy will be forwarded to the PEB for inclusion in the record of proceedings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not have the final option to request transfer to the inactive reserves, in effect, the Retired Reserve after his final appeal to the United States Army Physical Disability Agency on 7 December 2005.  He requests that his status change from discharged with severance pay to transferred to the inactive reserves so as to be eligible to draw his USAR retirement pay at age 60.

2.  The PEB narrative clearly shows the applicant cannot receive disability severance pay and retirement pay.  The applicant states, in effect, that he did not make any written declaration or election to receive severance pay in lieu of transfer to the inactive reserves and subsequent retirement at age 60 of which he was eligible.  He states, that the "Board automatically assumed that I would be discharged with severance payment."  

3.  The applicant did have opportunities to elect transfer to the inactive reserves during the initial PEB preparations on 15 May 2003 and throughout the PEB proceedings during each rebuttal and appeal phase of the PEB.  The applicant did not rebut or appeal the PEB recommendation of separation with severance pay.  The applicant persisted in his appeals to refute the findings of the PEB, and did not address the specific disposition recommendation of separation with severance pay.  

4.  USAPDA's final decision, on 7 December 2005, was separation with severance pay that was immediately accomplished through the publication of the separation order effective the date of the USAPDA decision.  Defense Finance and Accounting Service received the separation order and paid the applicant severance pay on 28 December 2005.  

5.  Records indicate the applicant was not given his final written counseling option to make his final personal election of transferring to the Retired Reserve or accepting discharge with entitlement to severance pay upon the conclusion of his last appeal to the USAPDA.  This step is the required final written counseling statement offered the Soldier prior to the publication of separation or retirement orders by Human Resources Command.  

6.  Based on the foregoing discussion, there is sufficient evidence to warrant changing the disposition instructions of the PEB to show that the applicant made the final election to transfer to the USAR Control Group (Retired Reserve) effective 7 December 2005.    

BOARD VOTE:

__AC ___  __LD ___  __JR____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was transferred to the United States Army Reserve Control Group (Retired Reserve) effective 7 December 2005.

2.  The correction will necessitate the recoupment of the applicant's severance pay.  The Defense Finance and Accounting Service will determine by statute and regulatory guidance the parameters and repayment schedule to effect the collection of monies paid to the applicant in the form of severance pay paid 
on 28 December 2005. 





______Ann Campbell_________
          CHAIRPERSON




INDEX

CASE ID
AR20070003369
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071002
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
136.0400
2.

3.

4.

5.

6.