IN THE CASE OF:	  

		BOARD DATE:	        28 August 2008

		DOCKET NUMBER:  AR20080009696 


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 he be entitled to receive Reserve retired pay at age 60.  

2.  The applicant states that he should be entitled to retirement benefits or to have his severance pay returned.   

3.  The applicant provides a supplemental letter, dated 12 May 2008; a letter from the Chief, Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis, dated 20 February 2008; a memorandum, Subject: Transfer to an Inactive Status or Discharge with Severance Pay, dated 14 January 1988; a memorandum, Subject: Review of Proceedings of Physical Evaluation Board, dated 11 August 1987; an extract from Army Regulation 
635-40, dated 13 December 1985; his Notification of Eligibility for Retired Pay at Age 60; his DD Form 214 (Certificate of Release or Discharge from Active Duty); his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service); his Honorable Discharge Certificate, dated 29 March 1988; his discharge orders from the Army National Guard and as a reservist of the Army, dated 23 March 1988; and a message regarding his enlisted disability separation.

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 was born on 14 March 1948.  He enlisted in the Army National Guard on 11 July 1966.  At the completion of active duty for training, he was awarded military occupational training 12A (pioneer).  

3.  The applicant was ordered to active duty on 19 March 1979.

4.  His Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings are not available.  

5.  An 11 August 1987 memorandum indicates the applicant’s PEB proceedings were approved and administrative corrections were made to his DA Form 199 (PEB Proceedings), dated 1 July 1987.  The following comments were added: “(5) As a soldier with a rating of less than 30% who may have at least 20 years qualifying years for Reserve retirement UP Chapter 67, Title 10, U.S.C., you may have the option of accepting disability severance pay and forfeiting your Reserve retirement; or, you may be placed in an inactive (Reserve) status and receive Reserve retired pay at the age of 60 computed UP Chapter 71, Title 10, U.S.C., by forfeiting your disability severance pay.  If you elect transfer to the inactive Reserve status list for the purpose of receiving Reserve retired pay at age 60, no disability percentage will be computed.  UP Chapter 61, Title 10, U.S.C., 1209, you may not receive both disability benefits and retired pay for non-regular service.”   

6.  The applicant’s notification of eligibility for retired pay at age 60 is dated 17 November 1987.

7.  On 14 January 1988, the applicant elected to be discharged with entitlement to receive disability severance pay, pursuant to Title 10, United States Code, section 1212.

8.  The applicant was discharged from active duty on 29 March 1988 under the provisions of Army Regulation 635-40, paragraph 4-24e(3) by reason of physical disability with severance pay.  

9.  State of South Dakota, Department of Military and Veterans Affairs, Rapid City, South Dakota, Orders Number 48-4, dated 23 March 1988, discharged the applicant from the Army National Guard and the Reserve of the Army on 29 March 1988.  These orders show he was authorized disability severance pay in pay grade sergeant first class based on 9 years, 10 months, and 12 days of active Federal service and 21 years, 4 months, and 19 days for base pay.  He was given a disability rating of 10 percent.   

10.  In a 20 February 2008 letter, the Chief, Transition and Separations Branch, 
U.S. Army Human Resources Command, St. Louis, Missouri stated that this office sent the applicant an application packet for retired pay at age 60.  The applicant returned the packet with the Data for Payment of Retired Personnel (DD Form 2656).  In Section III - Separations Payment Information, he indicated he received $35,000.00 in severance pay.  The letter also indicated that any benefits to which the applicant was entitled as a result of his military service would come under the jurisdiction of the Veterans Administration (VA) and the Social Security Administration.  

11.  He reached age 60 on 14 March 2008.

12.  Title 10, U.S. Code, section 1209 states that any member of the armed forces who has at least 20 years of service (for a reserve retirement) and who would be qualified for disability retirement but for the fact that his disability is less than 30 percent may elect, instead of being separated, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive (reserve) retired pay upon becoming 60 years of age.  

13.  Title 10, U.S. Code, section 1212(c) states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.  

14.  Title 10, U.S. Code, section 1213 states that, unless a person who has received disability severance pay again becomes a member of an armed force…he is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation, under any law administered by one of those services or for it by another of those services.  However, this section does not prohibit the payment of money to a person who has received disability severance pay, if the money was due him on the date of his separation or if a claim by him is allowed under any law.  

15.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  

16.  Title 38, U.S. Code, section 5304 states that, except to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, regular, or reserve retirement pay shall be made concurrently to any person based on such person’s own service.  

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence, it appears that a PEB found the applicant unfit for military service with a ten percent combined disability rating.  As a result, he was discharged from active duty due to disability with entitlement to severance pay.

2.  The applicant’s PEB proceedings were administratively corrected on 11 August 1987 to show he could accept disability severance pay and forfeit his Reserve retirement or he could be placed in an inactive (Reserve) status and receive Reserve retired pay at the age of 60 computed under the provisions of Chapter 71, Title 10, U.S.C.

3.  The evidence of record shows the applicant elected to accept disability severance pay.  By accepting disability severance pay by law, the applicant forfeited his right to receive Reserve retired pay at age 60.  

4.  By law, the applicant is not eligible to receive both disability benefits and retired pay for non-regular service.  Through the provisions of another section of the law, his severance pay was required to be deducted when he was awarded VA disability compensation.  Therefore, there is an insufficient basis for granting the applicant Reserve retired pay age 60.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____xx__  ___xx___  __xx____  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.




      _______ xxxx_______   ___
               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)                                         AR20080009696





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ABCMR Record of Proceedings (cont)                                         AR20080009696



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