IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080009130 


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 that his discharge orders be amended to show he was assigned to the Retired Reserve.

2.  The applicant states, in effect, that he completed over 20 years of service in the U.S. Army Reserve (USAR).  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 10 January 2005.

	b.  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 12 November 2003.

	c.  Letter from the Army senior leaders presenting the applicant with his new Army Retired Soldier Pin.  

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 records show he was born on 9 April 1956 and enlisted in Regular Army for a period of 3 years on 2 February 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).  He also executed a 3-year reenlistment in the Regular Army on 22 January 1980 and a 2-year extension on 16 October 1981.  

3.  The applicant’s records also show he was honorably discharged in the rank/grade of sergeant (SGT)/E-5 on 21 January 1985.  The DD Form 214 he was issued at the time shows he completed 7 years, 11 months, and 20 days of creditable military service.

4.  After a short break in service, the applicant enlisted in the Georgia Army National Guard (GAARNG) for a period of 4 years on 9 May 1985.  He was honorably separated and transferred to the U.S. Army Reserve Control Group on 8 May 1989.  He was subsequently assigned to a Troop Program Unit (TPU), the 988th Support Company, Dublin, Georgia.  He remained in that status until he was separated on 18 August 1990.

5.  After a second break in service, the applicant enlisted in the GAARNG for a period of 3 years on 7 October 1994.  He also executed a 6-month extension in the GAARNG on 14 September 1997 and transferred to the Alabama Army National Guard (ALARNG).  He was honorably discharged from the ARNG on 22 February 1999.

6.  On 23 February 1999, the applicant enlisted in the USAR for a period of 5 years in the rank/grade of SGT/E-5. He was trained in and awarded MOS 88M (Motor Transport Operator).   

7.  On 15 October 2001, Department of the Army, 81st Regional Support Command, Birmingham, Alabama, ordered the applicant to active duty as a member of his USAR unit in support of contingency operations.  He was assigned to a TPU unit, the 2125th Garrison Support Unit (GSU), Decatur, Georgia.  He was promoted to staff sergeant (SSG)/E-6 on 6 September 2002.

8.  On 23 January 2003, the applicant was released from the 2125th GSU, Decatur, Georgia, and was reassigned to another TPU, the 206th Transportation Company, Fort Benning, Georgia.  

9.  On 10 February 2003, the applicant was ordered to active duty for a period of 365 days in support of contingency operations.  However, the U.S. Army Reserve Personnel Command, St. Louis, Missouri (MO), Order that ordered him to active duty, is not available for review with this case.

10.  On 30 September 2003, the applicant experienced bilateral heel pain-heel spurs, aggravated by the wearing of boots and marching.  He was treated at Martin Army Community Hospital, Fort Benning, Georgia, in an outpatient status. His injury was determined to be “In Line of Duty.”  

11.  On 12 November 2003, the U.S. Army Reserve Personnel Command, St. Louis, MO, issued the applicant his Notification of Eligibility for Retired Pay at Age 60, also known as the 20-Year Letter.

12.  On 26 December 2003, the applicant experienced pain from his neck to his right shoulder and was subsequently treated for a compression fracture at Wellstar Douglas Hospital, Douglasville, Georgia.  His injury was determined to be in “Line of Duty.” 

13.  On 6 February 2004, Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia, published Orders 037-2223, ordering the applicant released from active duty, effective 9 February 2004, for completion of required service and transferring him to his USAR TPU, the 206th Transportation Company, Fort Benning, Georgia.   

14.  On 23 February 2004, HRC-St. Louis, MO, issued Orders A-02-401608, ordering the applicant to active duty for a period of 90 days, effective 10 February 2004, and ending on 9 May 2004, for the purpose of active duty medical extension (ADME).  He was assigned to the Patient Holding Detachment, Medical Department Activity, Fort Benning, Georgia.  Furthermore, his period of active duty was subsequently amended by HRC-St. Louis, MO, several times, by appropriate orders, to show his ending date as 10 January 2005. 

15.  On 7 September 2004, the applicant was considered by a Medical Evaluation Board (MEB).  The MEB found that the applicant had moderate knee pain, and medically acceptable conditions of compression fracture and degenerative disc disease of the neck, right ankle pain, hyperactivity, gastritis, and diabetes mellitus.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).

16.  On 7 December 2004, a PEB was convened and found the applicant was physically unfit due to left knee limitation of extension to 15 degrees and recommended a 20 percent disability rating.  The PEB also considered the applicant’s other conditions of compression fracture and degenerative disc disease of the neck, right ankle pain, hyperactivity, gastritis, and diabetes mellitus, however, it did not find those conditions unfitting.  Based on the evidence, the PEB found the applicant’s medical and physical impairment prevented him from the reasonable performance of duties required by his grade and specialty.  

17.  The applicant was advised that Soldiers with a rating of less than 30 percent who may have at least 20 qualifying years for Reserve retirement may have the option of accepting disability severance pay and forfeiting Reserve retirement pay or requesting transfer to the inactive Reserve and receive Reserve retired pay at age 60.

18.  On 28 December 2004, the applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing.  

19.  On 10 January 2005, the applicant was discharged from active duty.  The DD Form 214 he was issued, shows he was honorably discharged from active duty in accordance with paragraph 4-24B(3) of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability with entitlement to severance pay.  He had completed 11 years, 6 months, and 11 days of active military service and 10 years, 7 months, and 22 days of inactive service.   

20.  The applicant's Chronological Statement of Retirement Points, dated 7 August 2008, shows that he completed 21 years, 10 months, and 19 days of qualifying service for retired pay as of his discharge date on 19 January 2005. 

21.  The applicant will reach age 60 on 9 April 2016.

22.  The applicant’s Defense Finance and Accounting Service (DFAS) military pay account shows that the applicant was paid the amount of $69,796.80 in severance pay. 

23.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

24.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years active service and a disability rated at less than 30 percent.

25.  AR 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

26.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for: enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and AR 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

27.  AR 135-178 (Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers.  Chapter 11 of this regulation specifies that upon expiration of the Soldier's term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the separation authority.

28.  AR 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant completed various periods of service in the Regular Army, ARNG, and USAR, and that during his most recent call to active duty, he sustained a knee injury that required treatment and ultimately led to a medical evaluation board to evaluate his medical condition.  The MEB recommended he be given a PEB.  The PEB found the applicant to be unfit for further military service and recommended the he be separated with severance pay, if authorized.  
2.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB that he be separated with severance pay.  Furthermore, since the applicant accumulated more than 20 years of qualified service for Reserve retirement, he was given the choice/option of electing to transfer to the Retired reserve and receipt of his military pension at age 60 or receiving disability severance pay.  He opted to separate with entitlements to severance pay.  There does not seem to be any error or injustice in this case.

3.  There is no evidence in the available records and the applicant did not provide substantiating evidence that shows he elected to transfer to the Retired Reserve or that he was not counseled properly regarding his options.   In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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      _______ _   _______   ___
               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)                                         AR20080009130



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ABCMR Record of Proceedings (cont)                                         AR20080009130



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