RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20070004514 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Lester Echols

Member

Mr. Jeffrey C. 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 correction of her military records to show that she was transferred to the Retired Reserve.

2.  The applicant states, in effect, that the personnel who processed her separation were negligent and acted inappropriate towards her.  As a result, she can no longer receive any of the benefits she earned by her 24 years of military service. 

3.  The applicant provides copies of her Certificate of Release or Discharge from Active Duty (DD Form 214), Line of duty Determination, orders, and her Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 13 November 2002, the United States Army Reserve Personnel Command, St. Louis, Missouri, issued the applicant her 20-Year Letter.  This letter informed the applicant of her options, including her eligibility to apply for retired pay at age 60. 

3.  On 15 March 2003, the applicant, a staff sergeant, United States Army Reserve, was ordered to active duty in support of Operation Enduring Freedom.

4.  On 21 March 2003, the applicant was involved in an automobile accident and sustained neck and back injuries.  A finding of “in line of duty” was made. 

5.  On 3 June 2003, an “in line of duty” determination was made for a middle back pain the applicant sustained on 25 August 1980, as the result of bending over and picking up dinner trays. 
6.  On 20 June 2003, a Medical Evaluation Board (MEB) convened to consider the applicant’s medical condition.  It found that she suffered from chronic low back pain and chronic neck pain and recommended that she be referred to a Physical Evaluation Board (PEB).  

7.  The PEB Proceedings are not available for review.

8.  On 20 January 2004, the applicant was honorably discharged from active duty, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), due to a physical disability.  She received severance pay.  She had completed 
10 months and 6 days of active duty during this period of service and had 
20 years, 11 months, and 2 days of prior inactive service.

9.  A 4 February 2004 memorandum from the Mower Personnel Processing Center, 3rd Infantry Division and Fort Stewart, Fort Stewart, Georgia, for the Chief, Patient Affairs Branch, Fort Stewart.  It states, in part, that the applicant was instructed to provide a copy of her 20-Year Letter and to either elect to receive severance pay, or to be transferred to the Retired Reserve.  It further indicates that she was informed that she could not receive severance pay and also be transferred to the Retired Reserve.  The memorandum further states that the applicant refused to make an election.  As a result, she was discharged from active duty with severance pay.

10.  In the processing of this case, an advisory opinion was obtained from the Agency Legal Advisor, United States Army Physical Disability Agency (USAPDA), Washington, DC.  It stated that the applicant was properly separated and awarded severance pay for her chronic back and neck pain; and, that the findings were affirmed by the PEB and by review of the USAPDA. 

11.  The applicant was provided a copy of the advisory opinion for her information and opportunity to make comment or rebuttal.  As of 17 October 2007, no reply has been received. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was afforded the opportunity to elect to be transferred to the Retired Reserve or to receive severance pay at the time of her discharge.  She was informed that she could not have both.  Because retirement is a voluntary action and she chose to not cooperate with the Personnel Processing Center, the only available option was to discharge her with severance pay.  

2.  The applicant’s contention that the personnel processing her for separation were negligent or acted inappropriate towards her is not substantiated by any of the available evidence. 

3.  The applicant still has the option of applying for retired pay at age 60.  However, she will be required to repay the severance pay that she has received.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ JEA __  __LE  ___  __JCR   __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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 E. Anderholm __
          CHAIRPERSON




INDEX

CASE ID
AR20070004514
SUFFIX

RECON

DATE BOARDED
20071101
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136.0300
2.

3.

4.

5.

6.