IN THE CASE OF:	  

		BOARD DATE:	  28 October 2008

		DOCKET NUMBER:  AR20080004767 


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, that his record be corrected to show his request for Continuation on Active Reserve (COAR) status was approved, and that he was allowed to serve until attaining length of service for a non-regular retirement.  

2.  The applicant states, in effect, that at the time he was found unfit by the Physical Evaluation Board (PEB) he had completed 19 years, 9 months and 
15 days (sic) of active Marine Corps and Army Reserve time.  He also states he requested COAR status in order to obtain his 20 qualifying years for non-regular retirement.  However, his request for COAR status was denied and he was instead separated with disability severance pay.  He states that he feels his COAR status denial and discharge were unfair and unjust because Army Regulation 135-178 states that if a service member has 18 years or more but less than 20 years of military service the Secretary of the Army is the only one that can authorize the decision to discharge a Soldier from the Army.  He further states that he should have been provided the opportunity to finish his 20 years to obtain non-regular retirement and retired pay at age 60.  He now requests that his records be corrected to show that his request for COAR status was approved and that he obtained his 20 qualifying years for non-regular retirement.

3.  The applicant provides the following documents in support of his application: Headquarters, United States Army Medical Department Activity Memorandum, dated 11 March 2004; Request for Continuance in Active Reserve, dated 12 May 2004; United States (U.S.) Army Physical Disability Agency (PDA) Memorandum, dated 10 August 2004; U.S Army Human Resources Command (HRC), St. Louis Memorandum, dated 19 August 2004; U.S. Army PDA Memorandum, dated 
4 September 2004; Retirement Points (AHRC Form 606-E); Physical Disability Information Report; and page 2 of PDA Proceedings (DA Form 199).

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 shows he initially enlisted into the United States Marine Corps (USMC) and entered active duty on 26 March 1980.  He continually served until being honorably released from active duty on 25 March 1984 and transferred to the USMC Reserve (USMCR).

3.  On 26 March 1984, the applicant was transferred into the USMCR where he remained until he reenlisted into the USMC.

4.  On 1 March 1985, the applicant reenlisted into the USMC.  He continually served for a period of 3 years until being honorably discharged on 28 February 1988.

5.  On 29 March 1991, the applicant enlisted into the United States Army Reserve (USAR) for assignment to a Troop Program Unit.  He was mobilized on 21 January 2003.

6.  On 12 May 2004, the applicant was found unfit by the Physical Evaluation Board (PEB) and entitled separation with severance pay.

7.  On 12 May 2004, the applicant submitted a request for Continuance in an Active Reserve status in order to obtain his eligibility for Reserve Component (RC) retirement on or about 26 March 2005.

8.  On 17 May 2004, the applicant concurred with the PEB findings waiving his right to a formal hearing.

9.  On 10 August 2004, the Physical Disability Agency (PDA) submitted a memorandum to Headquarters, Human Resources Command (HRC)-St. Louis recommending that the applicant's request for exception to policy for COAR status be favorably considered.  The PDA official stated that as of 2 August 2004, the applicant had completed a total of 19 years and 5 months of creditable military service for non-regular retirement purposes, and that his desire to continue serving was commendable.  The PDA official recommended the applicant be returned to duty in a Troop Program Unit (TPU) status in order to complete 20 good years towards RC Retirement.

10.  On 10 August 2004, the applicant requested discharge with entitlement to receive severance pay.

11.  On 19 August 2004, HRC-St. Louis denied the applicant's request for COAR status, stating that the applicant had signed a statement requesting discharge and received severance pay.

12.  On 4 September 2004, the PDA informed the applicant that his request for COAR status had been denied.

13.  On 7 October 2004, the applicant was honorably discharged in the rank of staff sergeant (SSG) under the provisions of paragraph 4-24B (3), Army Regulation 635-40, by reason of disability with severance pay.  The DD Form 214 he was issued shows that he completed 9 years, 2 months and 17 days of active military service.  It also shows he had completed 11 years, 3 months and 20 days of inactive service.  He was paid $50,576.40 in severance pay.

14.  The applicant’s retirement point statement shows that he had a total of 19 years, 6 months, and 7 days of qualifying service for retired pay at age 60 on 
7 October 2004, his date of discharge.  His statement also shows that for the retirement year ending 28 March 1992 he had 15 retirement points for a non-qualifying retirement year.  All other retirement years contain qualifying service.  His date of birth is shown as 13 November 1960 and will reach age 60 on 13 November 2020.

15.  In connection with the processing of this case, an advisory opinion was obtained from the PDA Legal Advisor.  This official states that on 12 May 2004, the applicant was found unfit for duty by a PEB, and awarded separation with severance pay, and on that same date the applicant requested COAR.  On 
17 May 2004, the applicant concurred with the PEB findings and waived his right to a formal hearing.  On 10 August 2004, the PDA recommended that the 
HRC-St. Louis approve the applicant’s request for COAR status; however, on 
19 August 2004, HRC-St. Louis denied the request.  Accordingly, the applicant was separated with severance pay on 7 October 2004.

16.  This official also stated, in effect, that the denial of the applicant’s request for COAR is the pertinent issue in his request for correction of his records and that PDA had no authority in that regard, and it was HRC-St. Louis who disapproved the applicant's request for COAR.  The PDA has no objection to the applicant's record being corrected to reflect COAR approval and qualification for a Reserve Retirement.  However, the applicant must be advised that if his records are corrected to reflect a Reserve retirement he must forfeit his right to any disability severance pay in accordance with Title 10, United States Code Section 1209, requiring recoupment of severance pay he has thus received.

17.  On 20 August 2008, a member of the Board contacted the applicant to inform him that prior to further consideration of his case he must formally acknowledge that he understood that if his request for COAR and eligibility for non-regular Reserve retirement at age 60 were approved, it would require recoupment of the disability severance pay he received in conjunction with his disability discharge and that he would not receive retired pay until reaching age 60.

18.  On 24 August 2008, the applicant returned an election statement indicating that he understood that a favorable Board decision on his request for COAR and eligibility for a non-regular retirement and retired pay at age 60 will result in recoupment of the severance pay he received in conjunction with his disability discharge.  On 16 September 2008, the applicant submitted a clarification statement acknowledging that he clearly understood that recoupment of his disability severance pay could start immediately, and that Reserve retired pay would not begin until he reached age 60.

19.  Army Regulation 635-40 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  Paragraph 3-5 of the same regulation contains guidance on rating disabilities.  It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit due to another condition that is disqualifying.

20.  The same regulation stipulates that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Chapter 6 contains the policy on Continuation on Active Duty (COAD) and Continuation on Active Reserve (COAR) states of unfit Soldiers.  It prescribes the criteria and procedures under which Soldiers that have been determined unfit by the PDES may be continued on active duty (COAD) or in active reserve (COAR) status as an exception to policy.  It further states that COAD applies only to officers on the active duty list and Regular Army enlisted Soldiers, and that COAR applies to Reserve Component (RC) Soldiers determined unfit while mobilized, who may only request continuation in their pre-mobilization status or in the Individual Ready Reserve (IRR).  RC Soldiers are ineligible for COAD, or otherwise being accessed onto the active duty list as a COAD.  The Soldier may return to a mobilized status subject to mobilization policy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was unfairly and unjustly discharged with severance pay after completing 19 years, 9 months and 15 days (sic) of military service, and not allowed the opportunity to complete 20 years of qualifying service for a non-regular Reserve retirement at age 60 was carefully considered and found to have merit.

2.  The available evidence confirms that in conjunction with the PEB finding of unfitness, the applicant requested COAR status to complete 20 years of qualifying service for non-regular retired pay, and that the USAPDA supported this request.  Further, the evidence shows that HRC-St. Louis denied this request because the applicant had already elected discharge with severance pay.

3.  Given the applicant requested COAR status in a timely manner and his request was supported by the USAPDA, it is unclear why the applicant would have requested discharge with severance pay prior to receiving the decisions on his request for COAR.  However, it appears that had the applicant been properly advised he would have delayed his request until receipt of the determination of his request for COAR, which based on the reason for denial may have had a different outcome had the applicant not been allowed to prematurely submit his request for discharge.
4.  Accordingly, it would be appropriate and serve the interests of equity and justice to correct the applicant's record by voiding his 7 October 2004 disability discharge with severance pay and to show he was instead released from active duty on that same date and transferred to the Retired Reserve the following day with 20 qualifying years of service for non-regular retirement purposes.

5.  A review of the applicant's record confirms that by correcting the record to show his COAR request was approved to the date he requested, 26 March 2005, would not result in 20 qualifying years for the applicant.  Therefore, the most efficient way to provide the applicant the relief he requests is to redistribute 35 retirement points from the USAR retirement years with excess points and transfer them to the retirement year ending on 28 March 1992.  This would result in the applicant being credited with 50 retirement points making this a qualifying retirement year.

6.  Further, as a result of the redistribution of retirement points outlined above, the applicant should be credited with a total of 20 years, 6 months, and 7 days of qualifying service for non-regular retirement purposes, and he should be issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) based on these corrections.

7.  The applicant is advised that based on these corrections and his agreement, the severance pay he received in conjunction with his disability discharge will be subject to recoupment.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

   a.  voiding his 7 October 2004 disability discharge with severance pay;
   
   b.  issuing a new DD Form 214 showing that he was instead released from active duty on that same date and transferred to the Retired Reserve;

   c.  redistributing 35 retirement points from the years with excess points to the retirement year ending 28 March 1992, and crediting him with an additional qualifying year for retirement purposes;

   d.  showing he completed a total of 20 years, 6 months, and 7 days of qualifying service for non-regular retirement purposes; and 
   
   e.  issuing him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to approval of COAR status and return to an active status.



      _______ 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)                                         AR20080004767



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ABCMR Record of Proceedings (cont)                                         AR20080004767



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