IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080005617
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, transfer to the retired reserve.
2. The applicant states that he was discharged upon his insistence several years after the Veterans Administration awarded him 100 percent disability. He continues, in effect, that he should have been transferred to the Retired Reserve.
3. The applicant provides a copy of Department of Veterans Affairs correspondence, dated 4 August 1999, certifying his service-connected permanent disability rating of 100 percent.
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 applicants 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 applicants 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 military service records show that he enlisted in the Regular Army on 1 November 1983. He was appointed as a commissioned officer in the Army National Guard to the rank of second lieutenant in the corps of engineers effective 1 September 1987. The highest rank he achieved was captain/pay grade O-3.
3. The Department of Veterans Affairs Board of Veterans Appeals determination, dated 19 February 1997, granted the applicant a service-connected disability for Lyme disease based on its review of the evidence and material of record in the applicants claims file.
4. Department of Veterans Affairs correspondence, dated 4 August 1999, certifies the applicants service-connected permanent disability rating of 100 percent.
5. The applicants web-based military personnel management transactions summary record shows that he requested unqualified resignation in response to a Selected Reserve solicitation and provided documentation showing
100-percent social security and veterans disability.
6. U.S. Army Reserve Personnel Command Orders D-07-226387, dated 2 July 2002, show that the applicant was honorably discharged effective 2 July 2002.
7. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes, in pertinent part, eligibility and procedures for transfer to the Retired Reserve. Eligible Soldiers must request transfer if they are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty regardless of the total years of service completed. The application must include the reason and authority for transfer to the Retired Reserve and a statement indicating applicable receipt of disability compensation, to include the amount and type of disability.
DISCUSSION AND CONCLUSIONS:
1. The applicants request for transfer to the Retired Reserve was carefully considered and determined to have merit.
2. The applicants military service records show that he provided documentation substantiating his service-connected permanent disability rating of 100 percent.
3. There is no evidence which shows that the applicant was counseled regarding eligibility for transfer to the Retired Reserve.
4. It is reasonable to conclude that the applicant would have requested transfer to the Retired Reserve in accordance with the provisions of Army Regulation 140-10 if he had received proper counseling regarding his separation and discharge options. Therefore, he should be transferred to the Retired Reserve in lieu of discharge effective 2 July 2002.
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 pertaining to the individual concerned be corrected by revoking his discharge orders and publishing orders transferring him to the Retired Reserve effective 2 July 2002.
_______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) AR20080005617
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080005617
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2011 | 20110006469
The regulation states, in pertinent part, that honorably discharged veterans who are not entitled to retired pay and who have received a 100 percent service-connected permanent disability rating from the DVA are entitled to an identification card with an "indefinite" expiration date giving them access to military installations to patronize exchanges, MWR facilities, and commissaries only. Title 10, U.S. Code, section 3914, provides that an enlisted member of the Army who has at least 20,...
ARMY | BCMR | CY2015 | 20150003694
Title 10, U.S. Code (10 USC), 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. Sections 12731 through 12738 of 10 USC, authorize retired pay for Reserve component (RC) military service. The evidence of record confirms the applicant completed less than 15 years (14 years, 5 months, and 29 days) of qualifying service toward nonregular retirement at the time he was discharged for...
ARMY | BCMR | CY2009 | 20090002438
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system 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 office, grade, rank, or rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further...
ARMY | BCMR | CY2013 | 20130014573
A letter, dated 23 October 2012, wherein DFAS advised HRC that their records did not reflect receipt of orders from the U.S. Army regarding the applicant's eligibility for military retired pay; therefore, they were unable to process his CRSC entitlement. d. A Chronological Statement of Retirement Points, dated 30 November 2012, which shows: * he served in the AUS from 6 August 1956 through 5 August 1958 * he served in the USAR from 6 August 1958 through 5 August 1962 * had a break in...
ARMY | BCMR | CY2013 | 20130016773
The applicant requests that his records be corrected to show he was retired by reason of permanent disability. The applicant states he believes his transfer to the Retired Reserve was unjust given his deployments and his Department of Veterans Affairs (VA) medical records. The VA rating decision provided by the applicant shows that he was granted a 60 percent disability rating effective 29 December 2010.
ARMY | BCMR | CY2009 | 20090011260
The applicant states that she did not meet medical standards and was placed in the Retired Reserve but should have been medically retired. The applicant provides the following documents in support of this application: a. four copies of her DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 14 March 2005, 5 April 2004, 19 December 2002, and 30 July 1994; b. a copy of a DD Form 3349 (Physical Profile), dated 27 April 2002; c. a DA Form 2173 (Statement of Medical...
ARMY | BCMR | CY2010 | 20100024907
He states he/the: * was retired for disability with eligibility to CRDP under Title 10, U.S. Code * Defense Finance and Accounting Service (DFAS) fails to pay him CRDP because it incorrectly computed his retirement status and eligibility * previously applied to this Board for correction of his discharge to show that he was placed on the Temporary Disability Retired List (TDRL), effective 16 October 2004 * is currently receiving 100 percent (%) disability compensation from the Department of...
AF | PDBR | CY2010 | PD2010-00025
Orthopedic exam several weeks later noted a 1+ effusion with a 1+ Lachman test (i.e., positive anterior instability). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a separation rating of 10% for the left knee ACL condition coded 5257 and 10% for the medial meniscus condition coded 5259 for a combined rating of 20%. Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
ARMY | BCMR | CY2011 | 20110009972
The applicant requests that his DD Form 2656-6 (Survivor Benefit Plan (SBP) Termination Request) dated 8 October 2004, to disenroll from the SBP be honored. Title 10, Section 1452(g) states a retiree who has elected to participate in the Plan and who is suffering from a service-connected disability rated by the Secretary of Veterans Affairs as totally disabling and has suffered from such disability while so rated for not less than five continuous years from the date of retirement or if...
ARMY | BCMR | CY2009 | 20090001511
The applicant states, in effect, that since he was under narcotic medication for his condition, he was unable to make the correct decision in his case. In support of his request, the applicant provides copies of his 2003 active duty orders, two DA Forms 2173 (Statement of Medical Examination and Duty Status), three Statement of Medical Condition and Treatment Plan memoranda, a Request for ADME (Active Duty Medical Extension) Status memorandum, a DA Form 4187 (Personnel Action), his 2004...