IN THE CASE OF:	

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080008351 


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, change in the reason for his separation.

2.  The applicant states, in effect, that he was found unfit for duty and then received 2 memoranda pertaining to his retirement.  The memorandum from the U.S. Total Army Personnel Command, dated 12 June 2001, indicated that his request for early retirement was conditionally approved for 1 July 2001 and the memorandum from the U.S. Army Physical Disability Agency, dated 15 June 2001, indicated that he was approved for early retirement in lieu of separation with severance pay; that he would be removed from the Temporary Disability Retired List (TDRL); and placed on the permanent retired list.

     a.  The applicant states he then received Headquarters, U.S. Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, District of Columbia (DC), Orders D131-1, dated 6 July 2001, that removed him from the TDRL and placed him on the permanent retired list.

     b. The applicant states that he requested a recomputation of his retired pay because it was low and was told that he was a Temporary Early Retirement Authority (TERA) retiree.  The applicant also states that he contacted an official in the TERA Branch and “she indicated [the applicant] was not TERA because [he] had no closing date.”  The applicant further states that he talked to the official weeks later and she told him he was “outside of the requirements of 




TERA because [he had] retired to (sic) long.”  The applicant adds that he was “trying to get credit for community service employment” and “was not aware of his true retirement status and [had] never received anything ever from the TERA authority.”

     c.  The applicant states that he has been “unaware and left uninformed of all the issues for [his] retirement.”  He also states that he was retired with the understanding that he was on the “PDRL” (permanent disability retired list) and did not know anything about TERA and the requirements.  The applicant adds that he was receiving 100 percent disability from the Department of Veterans Affairs (VA) at the time he went to the Physical Evaluation Board (PEB) and he is now receiving 80 percent disability.

     d.  The applicant states he contacted an official at the Defense Finance and Accounting Service (DFAS) who told him that he was a TERA retiree and that he should understand the codes and statutes pertaining to his retirement.

     e.  The applicant concludes by stating, based on the condition he was in, he should have been placed on the “PDRL” and requests permanent disability retired status with the corresponding pay.  If his request is denied, he requests the TERA authorize credit for his “community service employment time as if he was a new retiree.”
  
3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 31 March 2000; Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, memorandum, dated 12 June 2001, subject:  FY01 Early Retirement Program Application [pertaining to the applicant]; Headquarters, U.S. Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, DC, memorandum, dated 15 June 2001; subject:  Return of Physical Evaluation Board Proceedings [pertaining to the applicant]; and a “Corrected Copy” of Headquarters, U.S. Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, DC, Orders D131-1, dated 6 July 2001.

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 military service records show that he enlisted in the U.S. Army Reserve (USAR) on 18 May 1983 and entered active duty in the Regular Army (RA) on 15 September 1983.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 91B (Medical Specialist).   The applicant’s records show that he served in Somalia from 15 December 1992 to 30 January 1993.  He was promoted to the rank of sergeant first class (SFC)/pay grade E-7, effective 1 November 1998.

3.  The applicant’s Official Military Personnel File (OMPF) is absent a copy of his Medical Evaluation Board (MEB) proceedings.

4.  The applicant’s military service records contain a copy of Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 053-0157, dated 22 February 2000.  These orders show, in pertinent part, that the applicant was released from assignment and duty because of physical disability incurred while entitled to basic pay on 31 March 2000 and placed on the TDRL in the grade of rank of SFC/E-7, effective 1 April 2000.  The orders also show the applicant was credited with completing 16 years, 7 months, and 29 days service for disability retirement; 16 years, 7 months, and 29 days service under Title 10, United States Code (USC), section 1405; and 16 years, 11 months, and 26 days service for basic pay.

5.  The applicant’s military service records contain a copy of a DD Form 2648 (Preseparation Counseling Checklist), dated 2 March 2000, that recorded preseparation services and benefits requested by, and provided to, the applicant. Section III (All Transitioning Service Members Must Read and Sign) contains the statement “I was offered preseparation counseling on the above date (Item 7) on my transition benefits and services, as appropriate.  I understand that this preseparation counseling is provided to assist my transition process as required by Title 10, USC 1142.”  This section shows, in pertinent part, that the applicant placed an “X” in the “accept” block for the statement “I ‘accept’ further transition assistance counseling.  I have checked those items where I desire further 



information or counseling.”  Section IV, Item 18 (Disabled Veterans Benefits), line a (Disabled Transition Assistance Program (DTAP) and line b (VA Disability Benefits), show that the applicant placed a checkmark in the “YES” column.  Item 8a (Service Member Signature) shows the applicant placed his signature on the document certifying his choices for further transition assistance counseling.

6.  The applicant's military service records contain his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he served continuously on active duty from 15 September 1983 through 31 March 2000.  This document also shows that he was honorably retired under authority of Army Regulation 635-40, paragraph 4-24b(2), based on temporary disability.  At the time, the applicant was credited with completing 16 years, 6 months, and 16 days net active service this period; no prior active service; and 3 months and 27 days total prior inactive service.

7.  The applicant’s military service records contain a copy of a DA Form 199 (Physical Evaluation Board (PEB) Proceedings).  This document shows that a formal PEB convened on 23 May 2001 and included as exhibits considered by the Board were the applicant’s TDRL packet and TDRL reevaluation.

     a.  Item 15 (For Formal Hearings) shows that the applicant elected to appear, and did appear, at the formal PEB and he was represented by counsel; Captain Geraldine C_____, Judge Advocate General Corps.

     b.  The PEB proceedings document the applicant's Type II diabetes mellitus manageable by diet only.  This document shows the PEB found the interstitial pneumonia/pulmonary fibrosis is no longer an unfitting condition.  This document also shows that evaluation in May 2000 documented a normal chest CT scan with no evidence of interstitial fibrosis and essentially normal pulmonary function testing. 

     c.  The PEB recommended a disability rating of 10 percent.  Based on a review of the medical evidence of record, the PEB concluded that the applicant’s medical condition prevents performance of duty in his grade and MOS.  The PEB considered the proper disposition to be separation with severance pay.  The Board also noted that the applicant’s disability rating is less than 30 percent and that for Soldiers with a disability rating of less than 30 percent and with less than 20 years of active federal service, Army Regulation 635-40 requires separation from service with severance pay in lieu of retirement.




     d.  The DA Form 199, Disability Description section, in pertinent part, contains the statement “Department of Defense Instruction 1332.38 provides that members with a disposition of separation for physical disability who have 15 but less than 20 years of active duty service under 10 USC 1208 shall be afforded the opportunity to elect separation for physical disability or to apply for, and if approved, non-disability retirement under the Temporary Early Retirement Authority (TERA) under 10 USC 3911 during the period of temporary special 
qualification authority ending on December 31, 2001, as extended by the National Defense Authorization Act of 2001.  The same opportunity shall be afforded to those Soldiers recommended for placement on and removal from the Temporary Disability Retired List (TDRL).  If you desire to apply for non-disability retirement in lieu of separation, you must submit a request through your supporting personnel office and provide a copy of the request to the PEB.  If you fail to submit a request and provide a copy to the PEB, you will be separated as indicated in item 9 below.”

     e.  The PEB proceedings show that the applicant was advised of the findings and recommendations of the formal PEB and also received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto.  The PEB proceedings also show that, on 23 May 2001, the applicant indicated (with both his initials and signature) that he concurred with the findings and recommendations of the formal PEB and in the “Rebuttal” section of the document the applicant entered the statement, “I wish to apply for TERA.”

8.  The applicant’s military service records are absent a copy of his request for early retirement under the TERA.

9.  The applicant’s military service records contain a “Corrected Copy” of Headquarters, U.S. Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, DC, Orders D131-1, dated 6 July 2001.  The orders show, in pertinent part, that the applicant was removed from the TDRL on 31 July 2001, granted a non-disability retirement under Title 10, USC, section 3914, and placed on the retired list in the grade of rank of SFC/E-7, effective 1 August 2001.  The orders also show the applicant was credited with completing 16 years, 7 months, and 29 days service for voluntary retirement; 16 years, 7 months, and 29 days service under Title 10, USC, section 1405; and 16 years, 11 months, and
26 days service for basic pay.

10.  In support of his application, the applicant provides the following documents.

     a.  DD Form 214, with an effective date of 31 March 2000, that was previously introduced and considered in this Record of Proceedings;

     b.  Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, memorandum, dated 12 June 2001, subject:  FY01 Early Retirement Program Application [pertaining to the applicant].  This document shows, in pertinent part, that the applicant’s request for early retirement was conditionally approved for
1 July 2001.  This document instructed the applicant that, in compliance with 
Public Law 102-484, he must receive the required preseparation counseling and also register with Public and Community Service (PACS).  The applicant was also informed that the servicing Army Career and Alumni Program (ACAP) Office or Army Community Service (ACS) Center will provide the required counseling and assistance in registering for PACS;

     c.  Headquarters, U.S. Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, DC, memorandum, dated 15 June 2001; subject:  Return of Physical Evaluation Board Proceedings [pertaining to the applicant].  This document shows that the applicant’s request for early retirement in lieu of separation with severance pay was approved.  This document also indicates that orders will be published that remove the applicant from the TDRL and place him on the permanent retired list; and

     d.  a “Corrected Copy” of Headquarters, U.S. Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, DC, Orders D131-1, dated 6 July 2001, that was previously introduced and considered in this Record of Proceedings.

11.  Army Regulation 400-40 (Patient Administration) assigns responsibilities and provides guidance on patient administration in Army regional medical commands (RMC) and military treatment facilities (MTF).  Chapter 7 (Military Personnel Physical Disability Processing), paragraph 7-7 (Medical evaluation board proceedings), provides that MEBs operate informally and may assemble to discuss and evaluate the patient's case.  Clinical, health and other records, as appropriate, are reviewed.  If deemed appropriate and when a patient's condition permits, the patient may be given the opportunity to appear in person and present their views relative to the proposed disposition.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 Army regulation provides for disposition of the Soldier according to applicable laws and regulations.



13.  Army Regulation 635-40, paragraph 3-8 (Counseling provided to Soldier), provides that the appointed Physical Evaluation Board Liaison Officer (PEBLO) at the medical treatment facility (MTF) is responsible for counseling Soldiers (or the next of kin or legal guardian in appropriate cases) concerning their rights and privileges at each step in disability evaluation, beginning with the decision of the treating physician to refer the Soldier to a MEB and until final disposition is accomplished.  For this purpose, the MTF commander will name an experienced, qualified officer, noncommissioned officer (NCO), or civilian employee as the PEBLO.  At least one additional qualified officer, NCO, or civilian employee will be designated as alternate PEBLO.  Only personnel whose duties will not conflict with their counseling responsibilities will be selected.  The MTF commander will notify the recorder of the applicable PEB of the name and telephone number of the PEBLO and alternate PEBLO.  PEBLOs will use the Disability Counseling Guide (Appendix C) to assist them in providing thorough counseling.  Counseling will be documented.  Counseling will cover as a minimum, the following areas:
(1) legal rights (including the sequence of and the nature of disability processing); (2) effects and recommendations of MEB and PEB findings; (3) estimated disability retired or severance pay (after receipt of PEB findings and recommendations); (4) probable grade upon retirement; (5) potential veteran's benefits; (6) recourse to and preparation of rebuttals to PEB findings and recommendations; (7) Disabled Veterans Outreach Program (DVOP); and
(8) post-retirement insurance programs and the Survivor Benefit Plan (SBP).

14.  Army Regulation 635-40, paragraph 4-10 (The medical evaluation board), provides that medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  Army Regulation 635-40, paragraph 4-17 (Physical evaluation boards), provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board and its findings and recommendations may be revised.  It is a fact-finding board for the following: (1) investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board; (2) evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; (3) providing 



a full and fair hearing for the Soldier as required under Title 10, United States Code, section 1214; and (4) making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 

16.  Title 10, United States Code (USC), section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Title 10, USC, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

17.  Department of Defense Instruction Number 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability; making administrative determinations for Service members with Service-incurred or Service aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.  Enclosure
3 (Procedures), Part 7 (Final Disposition), paragraph E3.P7.2 (General Rules Regarding Disposition), subparagraph E3.P7.2.1.1, provides that members with a disposition of separation for physical disability who have 15 but less than
20 years of service computed under Title 10, USC, section 1208 (10 USC 1208) and whose unfitting conditions are not due to the member’s intentional misconduct or willful neglect or incurred during a period of unauthorized absence, shall be afforded the opportunity to elect separation for physical disability or to apply for, and if approved, non-disability retirement under the Temporary Early Retirement Authority (TERA) under 10 USC 3911 during the period of temporary special qualification authority beginning on 23 October 1993 and ending on
31 December 2001.  Further, the same opportunity shall be afforded to members recommended for placement on or separation from the TDRL.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

19.  As a matter of information, Title 38, USC, sections 1110 and 1131, permit the Department of VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA 



rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of 
disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was retired based on permanent disability because he was not informed of all of the issues pertaining to his retirement under the TERA.  He also contends, if his request is denied, credit for fulfillment of his PCAS obligation. 

2.  The evidence of record shows the applicant was released from assignment and duty because of physical disability on 31 March 2000 and placed on the TDRL in the grade of rank of SFC (E-7), effective 1 April 2000.

3.  The evidence of record shows that the applicant and his counsel appeared before a formal PEB on 23 May 2001.  The evidence or record also shows that the PEB considered the applicant’s medical conditions described in his medical records and the evidence presented at that time.  Based on a review of the medical evidence of record, the PEB concluded that the applicant’s medical condition prevented performance of duty in his grade and MOS, recommended a disability rating of 10 percent, and the PEB considered the proper disposition to be separation with severance pay.  The evidence of record also shows, at the time of the PEB’s recommendation, the applicant had less than 20 years of active federal service.

4.  There is no evidence of record to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the processing of the applicant's MEB or PEB.
5.  The evidence of record shows that 10 USC 1201 provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Whereas, the evidence of record shows that 10 USC 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.  Thus, the evidence of record shows the PEB’s recommendation of separation with severance pay was proper and in accordance with the governing code.

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant fails to provide such evidence.  Thus, the applicant's MEB and PEB proceedings are presumed proper and equitable.  Therefore, the applicant is not entitled to correction of his records to show he was retired based on permanent disability.

7.  The evidence of record shows that Army officials provided counsel and assistance to the applicant throughout his medical and separation process, which included transition benefits and services.  Thus, the applicant’s contention that he was not counseled with respect to the disability separation process is not supported by the evidence of record.  In addition, the evidence of record shows that, upon notification of the conditional approval of his request for early retirement, the applicant was instructed on compliance with Public Law 102-484; specifically, that he must receive the required preseparation counseling and also register with PACS.  Moreover, the applicant was informed that the servicing ACAP Office or ACS Center would provide the required counseling and assistance in registering for PACS.  In view of the foregoing, the applicant provides insufficient evidence to support his contention that he was not informed of all of the issues pertaining to his retirement under the TERA or that he should be credited with fulfillment of his PCAS obligation.

8.  The evidence of record confirms that the applicant was approved for early retirement under TERA in lieu of separation with severance pay.  In the absence of evidence to the contrary, it is concluded that applicant’s early retirement under TERA was voluntary, administratively correct, and in compliance with applicable regulations.  In this regard, the evidence of record shows the applicant was properly and equitably retired from active duty in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, the applicant is not entitled to correction of his records with respect to his retirement under the TERA.

9.  The evidence of record shows that the applicant requested preseparation counseling pertaining to disabled veterans benefits, including the DTAP.  It is noted that counseling with respect to VA Disability Benefits routinely encourages Soldiers who are being separated from active duty to file a claim with the VA for all service connected impairments.  This counseling advises that the VA may rate any service connected impairment and they will base the rating on their independent evaluation.  In addition, although a Soldier separating from the Army might be eligible for VA benefits, the VA, in effect is governed by different rules and standards than the U.S. Army.

10.  The evidence of record shows the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA, on the other hand, must provide compensation for disabilities which it determines were incurred in, or aggravated by, active military service and which impair the individual’s industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA, in its discretion, may have awarded the applicant a higher or additional disability rating(s)  is a prerogative exercised within the policies of that agency.  However, it does not, in itself, establish physical unfitness for Department of the Army purposes.  Accordingly, it is not unusual for these two governmental agencies to arrive at different disability decisions because they are not measuring the same thing at all.  Confusion arises from the fact that different rating systems are used, but both reference the Veteran’s Administration Schedule for Rating Disabilities (VASRD); however, the way they are applied is governed by widely differing policies and concepts. 

11.  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 this requirement.

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)                                         AR20080008351



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008351



12


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1