RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070018547 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was transferred to the Retired Reserve instead of separated for disability-severance pay. 

2.  The applicant states, in effect, that a Physical Evaluation Board (PEB) determined that he was medically unfit and recommended separating him for disability with severance pay.  He further states that when the PEB results were forwarded to the U.S. Army Physical Disability Agency, he elected to be transferred to the Retired Reserve with entitlement to apply for retirement benefits at age 60.  Specifically, he argues:

	a.  his DD Form 214 erroneously shows he was separated for disability with severance pay;

	b.  he did not receive the severance pay; and 

	c.  the error on his DD Form 214 created a debt that he continues to pay today.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214, dated 4 July 2003.

	b.  Memorandum, dated 27 March 2003, in which he elected to transfer to the Retired Reserve with entitlement to apply for retirement benefit upon reaching age 60.

	c.  2003 Form W-2 (Wage and Tax Statement). 

4.  On 13 March 2008, by fax, the applicant provided a copy of his DD Form 2808 (Report of Medical Examination), dated 26 February 2003, and a copy of his DA Form 199 (Physical Evaluation Board Proceedings), dated 14 March 2003.

5.  On 25 March 2008, by fax, the applicant provided a copy of Headquarters, Fort Stewart and Hunter Army Airfield, Fort Stewart, Georgia, Orders 177-0013, dated 26 June 2003.  (Separation Orders).

6.  On 27 March 2008, by fax, the applicant provided a letter, dated 5 July 2007, from the Department of Veterans Affairs (DVA), recoupment of severance pay.

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.  The applicant’s records show that he was born on 13 February 1960 and enlisted in the Puerto Rico Army National Guard (PRARNG) on 20 January 1979. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He subsequently executed a series of reenlistments and/or extensions in the PRARNG.  The highest rank he attained during his military service was specialist (SPC)/E-4.

3.  On 1 November 2002, the Adjutant General's Office, PRARNG, San Juan, Puerto Rico, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  On 18 January 2003, the applicant was ordered to active duty as a member of his Reserve unit in support of Operation Enduring Freedom.  He was ordered to report to Fort Stewart, Georgia, on 21 January 2003.

5.  On 4 February 2003, the applicant jumped out of a truck at Fort Stewart, Georgia, and twisted his ankle.  He was evaluated at the troop medical clinic but continued to experience increased pain and was subsequently referred to and was examined at the orthopedic clinic on 13 February 2003.  His range of motion was determined to be limited and X-rays showed hardware in the tibia and fibula areas with severe arthritic changes and read as essentially effused joint.  He was issued a permanent physical profile as a result.

6.  On 26 February 2003, the applicant underwent a physical examination at Winn Army Community Hospital, Fort Stewart, Georgia.  The attending physician remarked that the applicant was involved in a motorcycle accident in 1986 and suffered a severe fracture of the left ankle.  He underwent open reduction and internal fixation (ORIF) consisting of screws and plates and had been functioning quite well until his arrival at Fort Stewart, Georgia.  He was able to pass all of his military functions to include the two-mile run in less than 17 minutes as well as carrying a 70-pound backpack.  The attending physician concluded that the applicant did not meet the Army retention standards of chapter 3, Army Regulation 40-501 (Standards of Physical Fitness), and further referred the applicant to a Medical Evaluation Board (MEB).

7.  The applicant's MEB Proceedings are not available for review with this case.  However, it appears that the MEB recommended the applicant be referred to a PEB.

8.  On 14 March 2003, a PEB convened at Fort Sam Houston, Texas, to consider the applicant's case.  The PEB found the applicant was physically unfit due to traumatic arthritis of the left ankle, status post ORIF of left ankle, due to an in the line of duty injury.  The PEB further recommended a combined Line of Duty injury and recommended a 10 percent combined disability rating.

9.  On 27 March 2003, the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.  

10.  The U.S. Army Physical Disability Agency's (USAPDA) review and disposition of the applicant's case is not available for review with this case.  However, on 27 March 2003, the applicant elected to be transferred to the Retired Reserve pursuant to Title 10, U.S. Code, section 1209, with entitlement to apply for retirement benefits upon reaching age 60.

11.  On 26 June 2003, Headquarters, Fort Stewart and Hunter Army Airfield, Fort Stewart, Georgia, published Orders 177-0013, reassigning the applicant to the U.S. Army Transition Point, for separation, by reason of disability, effective 4 July 2003.  The Orders further stated that the applicant was authorized disability severance pay in pay grade E-4 based on 4 years and 4 months of service.

12.  On 4 July 2003, the applicant was honorably discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged on 4 July 2003, in accordance with paragraph 4-24b(3) of Army Regulation 635-40, for disability with severance pay.  He had completed 5 months and 17 days of active military service during this period of active duty.

13.  On 5 September 2003, he was honorably discharged from the ARNG and assigned to the U.S. Army Reserve Control Group (USAR) (Retired Reserve) effective 4 July 2003.  He will turn 60 years of age on 13 February 2020.

14.  On 7 March 2008, a staff officer of the Defense Finance and Accounting Service (DFAS) stated that there is no record of the applicant in the DFAS pay system.  On 25 March 2007, a second query of the applicant's DFAS pay records yielded no record of the applicant.

15.  On 24 March 2008, a staff officer from the U.S. Army Physical Disability Agency (USAPDA), Washington D.C., stated the applicant's MEB and PEB records are no longer available for review at that office.  He further stated that, generally, upon receipt of the PEB findings at the USAPDA, a Soldier who elects to be transferred to the Retired Reserve in lieu of collecting severance pay must be issued an order transferring him/her to the Retired Reserve in accordance with U.S. Code, Title 10, section 1209, which allows the Soldier to apply for retirement benefits at age 60.

16.  The applicant provided a copy of his 2003 W-2 Form, issued by DFAS-Indiana.  This form shows the applicant's total gross wages, tips, and other compensation for 2003 amounted to $11,580.01 and total Federal income tax withheld amounted to $0.00.

17.  The applicant provided a copy of a DVA letter, dated 5 July 2007.  This letter shows that the VA approved the applicant's disability compensation; however, his monthly payment would be reduced by a prorated amount of the severance pay he received upon his discharge from active duty, and that each month, a certain amount of his monthly rate would be withheld until the full amount of the severance pay is recouped.  

18.  Title 10, U.S. Code, section 1209 states that any 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. 


19.  Title 10, U.S. Code, section 12732 states that  for the purpose of determining whether a person is entitled to retired pay under section 12731 of this title, the person’s years of service are computed by adding the person’s years of service in the National Guard after June 14, 1933, if his service therein was continuous from the date of his enlistment in the National Guard, or his Federal recognition as an officer therein, to the date of his enlistment or appointment, as the case may be, in the National Guard of the United States, the Army National Guard of the United States, or the Air National Guard of the United States. 

20.  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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

21.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for: enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

22.  Department of Defense Financial Management Regulation is issued under the authority of DOD Instruction 7000.14, “’DOD Financial Management Policy and Procedures.”  It governs financial management by establishing and enforcing requirements, principles, standards, systems, procedures, and practices necessary to comply with financial management statutory and regulatory requirements applicable to the Department of Defense.  Volume 7A governs military pay policy and procedures for active duty and Reserve pay.  Chapter 35 of Volume 7A governs severance pay.  It states, in pertinent part, that a member separated from the military service for physical disability is entitled to severance pay if qualified as prescribed in personnel regulations of the Military Service concerned.  When a member is entitled to disability severance pay, separation orders specify this entitlement. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant underwent a PEB that determined he was physically unfit and recommended his separation for disability with severance pay.  He concurred with the findings and recommendations.  The PEB findings were forwarded to the PDA for review prior to final disposition.  After reviewing the case, the PDA gave the applicant written notice of its findings and provided him a period of time to respond prior to finalization of the case.  The applicant elected to be transferred to the Retired Reserve with entitlement to apply for retirement at age 60.

2.  Evidence of record shows that the applicant did not receive the severance pay indicated on his separation orders or his DD Form 214.  As such, an order was published on 5 September 2003 discharging the applicant from the PRARNG and transferring him to the USAR Control Group (Retired Reserve) effective 4 July 2003, the date he was also discharged from the Regular Army.

3.  In view of the foregoing, it appears that the applicant's DD Form 214 should be corrected to show that the applicant was discharged for disability with no severance pay.  

4.  With respect of the applicant's contention that the error on his DD Form 214 created a debt that he continues to pay today, evidence of record shows that the VA is withholding a portion of the applicant's monthly disability compensation until it recoups the entire amount of the severance pay he received upon his separation from active duty.  Once the applicant's DD Form 214 is corrected to show that he was discharged for disability, with no severance pay, the applicant will be able to present the corrected DD Form 214 to the VA for a possible refund of the funds that have been erroneously recouped.  The applicant is advised to contact the VA regarding this issue as the ABCMR cannot answer questions on VA disability compensation, recoupment, or reimbursement of funds.  

BOARD VOTE:

__x___  __x___  __x___  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.  deleting the entry "Disability Severance Pay" from Item 28 (Narrative Reason of Separation), of the DD Form 214, dated 4 July 2003, and adding the entry "Disability" instead; 

	b.  deleting the entry "Disability Severance Pay-$14,592.00" from Item 18 (Remarks), of the applicant's DD Form 214, dated 4 July 2003, and adding the entry "Disability Discharge-Elected to Transfer to the Retired Reserve" instead; and

	c.  amending paragraph a. of the additional instructions of Orders        177-0013, dated 26 June 2003, issued by Headquarters, Fort Stewart and Hunter Army Airfield, Fort Stewart, Georgia, to read "Soldier elected to be transferred to the Retired Reserve pursuant to Title 10, U.S. Code, section 1209, with entitlement to apply for retirement benefits at age 60."





						RML
      ______________________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070018547



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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