IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20080010107 


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 he was retired for length of service or medically retired vice being discharged by reason of disability with severance pay.  

2.  The applicant states, in effect, he was removed from the Temporary Disability Retired List (TDRL) and discharged by reason of disability with severance pay and was never given the opportunity to complete the remaining service required in order to qualify for a 20-year length of service retirement based on his having completed over 18 years of active military service.  

3.  The applicant provides a Defense Finance and Accounting Service-Retired and Annuity Pay statement; US Army Physical Disability Agency (PDA) orders; Headquarters, US Army Armor Center and Fort Knox orders; and his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application.

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 record shows that he was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-40, by reason of temporary disability, for the purpose of being placed on the TDRL on 16 March 2005.  The DD Form 214 he was issued at the time confirms he held the rank of sergeant (SGT).   The Defense Finance and Accounting Service-Retired and Annuity Pay statement confirms that he completed a total of 18.65 years military service.  This apparently refers to 18.65 years of service for pay, as an Army National Guard Retirement Points History Statement, dated 4 January 2002, shows the applicant had completed only 9 years, 3 months, and 2 days of creditable service for retired pay as of retirement year ending 12 October 2001.

3.  USAPDA Orders Number D297-08 directed the applicant's removal from the TDRL and discharge with a 20 percent disability rating and severance pay, effective 23 October 2006.  

4.  The applicant's medical separation documentation was not available for review with this case.  Additionally, the National Guard Bureau did not provide copies of his medical separation procedures with the request for advisory opinion.

5.  The Chief, Personnel Division of the Army National Guard provided an advisory opinion for consideration with this case.  The Chief, Personnel Division of the Army National Guard recommended that the application be denied based on the fact that the sanctuary provision of section 1176 of USC Title 10 is not applicable to individuals separated due to physical disability.  Additionally, the Chief, Personnel Division of the Army National Guard opined that the applicant was properly considered and processed in accordance with section 1210 of chapter 61 of USC Title 10.  

6.  The applicant was provided a copy of the advisory opinion for review and rebuttal.  The applicant did not provide a written response to the advisory opinion.



7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  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 his or her office, grade, rank, or rating.  

8.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  

9.  The PEB also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

10.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

11.  Title 10, U. S. Code, section 1176(b) provides that a reserve enlisted member serving in an active status who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for 


cause), and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member's consent.

DISCUSSION AND CONCLUSIONS:

1.  Although there are incomplete records, government regularity is presumed in this case with regard to the separation process.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that the disability percentage rating of 20 percent assigned at the time of his discharge was inaccurate or unjust.  Absent evidence to show that the medical evaluation completed at the time of his discharge was erroneous or otherwise flawed, there is no basis to grant the applicant's request for a medical discharge.

2.  The applicant further contends that he should be granted correction to his records in order to qualify for a 20 year nonregular retirement.  Evidence shows that the applicant was removed from the TDRL and discharged from the service because of a permanent physical disability.  Therefore, in accordance with appropriate law and regulation, the applicant was appropriately separated and provided with severance pay based on his years of service.

3.  In addition, there is no evidence of record to show that the applicant completed over 18 years of active duty service for either a regular or 18 years of qualifying service for a nonregular retirement.

4.  Based on the foregoing, there is insufficient evidentiary basis to grant the relief requested in this case.

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)                                         AR20080010107



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ABCMR Record of Proceedings (cont)                                         AR20080010107



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