RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080000647 


	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:




Chairperson



Member



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, in effect, correction of his records to show he had    20 qualifying years for a Reserve retirement at the time of his discharge.

2.  The applicant states he thought that at the time of his discharge he had        20 years for retirement with the Army National Guard (ARNG).  He just found out that he does not have enough years for retirement at age 60.  He was not given an outbriefing before or after his discharge from the Active Guard Reserve (AGR) program.  If he had been given that outbriefing, he would have known that he needed 4 months more to have 20 good years of service.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 August 1996; an ARNG Retirement Points History Statement, prepared on 28 August 2007; and a U. S. Army Reserve Chronological Statement of Retirement Points, dated 17 October 2007.

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 was born on 14 April 1953.  After having had prior service in the Regular Army, the U. S. Army Reserve, and the ARNG, he enlisted in the ARNG on 3 October 1981.  He entered active duty in an AGR status on 14 May 1984.

3.  The applicant’s records contain several ARNG Current Annual Statements.  The Statement dated 4 November 1994 shows he completed 17 years,               2 months, and 29 days of creditable service for retired pay as of retirement year ending (RYE) 2 October 1994.  The Statement dated 2 November 1995 shows he completed 18 years, 2 months, and 29 days of creditable service for retired pay as of RYE 2 October 1995.  

4.  On 3 June 1996, a Physical Evaluation Board (PEB) found the applicant to be unfit for retention due to chronic back pain and recommended he be separated with a 20 percent disability rating and severance pay.  On 5 June 1996, the applicant concurred with the findings and the recommendation of the PEB.

5.  On 21 August 1996, the applicant was discharged due to disability with $60,796.80 in severance pay.  The current ARNG Retirement Points History Statement and a U. S. Army Reserve Chronological Statement of Retirement Points he provided show he had completed 19 years, 8 months, and 1 day of creditable service for retired pay as of that date. 

6.  Effective 21 August 1996, the ARNG discharged the applicant from the ARNG and as a Reserve of the Army by reason of being medically unfit for retention.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that a Soldier may not be retained or separated solely to increase retirement or separation benefits.

8.  Title 10. U.S. Code, section 12731a was the temporary special retirement qualification authority.  A revision dated 5 October 1994 provided that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who had completed at least 15, and less than 20, years of qualifying service and who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability, and upon the request of the member, could be transferred to the Retired Reserve and treated as having met the service requirements and be provided with the notification required if he had completed at least 15 and less than 20 years of service.

9.  Title 10, U. S. Code, section 1213 states that, unless a person who has received disability severance pay again becomes a member of an armed   force…he 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.

10.  Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a VA disability pension.  Under the law prior to 2004, a veteran could only be compensated once for a disability.  If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA pension and military retirement.  The new law does not apply to disability retirees with less than 20 years of service and retirees who have combined their military time and civil service time to qualify for a civil service retirement, but it does apply to those retired under the temporary early retirement authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged for disability with severance pay on 21 August 1996.

2.  The applicant’s records contain an ARNG Current Annual Statement dated     2 November 1995 that shows he completed 18 years, 2 months, and 29 days of creditable service for retired pay as of RYE 2 October 1995.  Therefore, at that time he should have been aware that he would not have attained 20 qualifying years of service for a Reserve retirement until around June 1997. 

3.  It appears the applicant actually had more qualifying service than the              2 November 1995 Statement indicated.  However, even if he had known in August 1996 that he would have attained 20 qualifying years of service for a Reserve retirement around December 1996, a Soldier may not be retained or separated solely to increase retirement or separation benefits.  There would have been no guarantee that he could have “strung out” his disability processing long enough to have reached 20 years of qualifying service in any case.  

4.  It is noted that the applicant did have over 15 years of qualifying service and might have been eligible for a Reserve retirement under the temporary early retirement authority.  He was a member of the Selected Reserve and was medically unfit for retention.  It cannot be determined why he was not offered that option, and it is possible that he was not eligible for that option at the time.  It was a drawdown tool, and there was no automatic entitlement to the early retirement.

5.  The applicant may want to reapply to the ABCMR and specifically request that his records be corrected to show he was provided notification of eligibility for retired pay at age 60 (a 15-year letter) as a result of being medically unfit for retention in the Selected Reserve.  However, he should be aware that if he makes that request and if his request is granted he would have to pay back all of his severance pay.  He should seek detailed financial advice before he makes such a request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __jgh___  __ksj___  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.




      __            PH         ___
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080000647


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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