IN THE CASE OF:
BOARD DATE: 22 July 2008
DOCKET NUMBER: AR20080001913
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, correction of his military records to show that he was separated for physical disability with severance pay prior to his transfer to the Retired Reserve.
2. The applicant states that his illnesses and injuries were diagnosed and treated while he was still actively serving.
3. The applicant provides copies of his permanent profile dated 17 April 2003; Memorandum from the Illinois Army and Air National Guard (ILARNG) dated
18 April 2003; Orders 131-016, State of Illinois, dated 11 May 2003; Memorandum with enclosures from the National Guard Bureau, dated
13 January 2006; Department of Veterans Affairs (VA) Rating Decision dated
7 December 2007; and a Correction to NGB Form 22 dated 20 February 2007.
CONSIDERATION OF EVIDENCE:
1. On 24 February 1993, the applicant enlisted in the ILARNG. He was promoted to sergeant, pay grade E-5 in 1995. He held a primary military occupational specialty (PMOS) of 92A (Automotive Logistics Specialist).
2. On 17 April 2003, the applicant received a permanent physical profile indicating that he was medically unfit for military duty.
3. On 18 April 2003, the Military Personnel Officer, ILARNG wrote a memorandum informing the applicant that he had been found unfit for retention in the Army National Guard. This memorandum also informed him of his right to appeal this finding to the Army Physical Evaluation Board (PEB). He was provided a 60 day period in which to respond. There is no evidence of record showing that the applicant ever responded to this memorandum.
4. Orders 131-016, ILARNG, dated 11 May 2003, discharged the applicant from the ILARNG and transferred him the Retired Reserve, effective 16 May 2003. These orders show that he was immediately eligible for Gray Area Retiree Benefits and full retired benefits at age 60.
5. On 13 December 2005, this Board considered the applicants request to correct his military records to show that he was transferred to the Retired Reserve. Accordingly, the Board recommended correction of his NGB Form 22 (Report of Separation and Record of Service in the Army National Guard of Illinois) to show that he was transferred to the Retired Reserve.
6. On 20 February 2007, the National Guard Bureau, issued an NGB Form 22A correcting the applicants NGB 22 to show that he was transferred to the Retired Reserve effective 16 May 2003.
7. On 7 December 2007, the VA rendered a rating decision granting the applicant service connection for a right index finger injury (zero percent disabling) and for hypertension (10 percent disabling). The VA did not grant service connection for residuals of a neck injury or for residuals of a right knee surgery. This rating decision also confirmed and continued a previous denial of service connection for type II diabetes mellitus and deferred any decision regarding compensation for excessive scar tissue pending the receipt of additional evidence.
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that members of the Reserve Components may forfeit disability severance pay and be transferred to the Retired Reserve and receive non-disability retired pay at age 60.
DISCUSSION AND CONCLUSIONS:
1. The available evidence clearly shows that the applicant was notified that he had been found medically unfit for retention in the military, and was informed of his right to appeal. However, there is no evidence showing that he ever acknowledged this notice or that he had elected to appeal the decision.
2. Although the VA has granted service connection for physical conditions that it considers were incurred on active duty, there is no available evidence showing that he was unable to perform his duties during a period of active duty service.
3. The applicant was transferred to the Retired Reserve and is entitled to receive non-disability retirement benefits at age 60. Any severance pay would have to be recouped after he reached age 60 and began drawing non-disability retired pay.
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 above, the applicants request should be denied.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ___X____ ___X____ 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.
________ _ X_______ ____
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20070016793
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ABCMR Record of Proceedings (cont) AR20080001913
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