IN THE CASE OF:	  

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080010572 


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 correction of the narrative reason for separation to show "Retirement" instead of "Disability Severance Pay."

2.  On 25 September 2008, the applicant changed his request to retire under the Temporary Early Retirement Authority (TERA).

3.  The applicant states that he was never afforded the opportunity to request early retirement.  He was medically boarded at more than 17 years of military service and discharged.

4.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 18 June 1999;

	b.  self-authored letter, dated 12 July 2007;

	c.  letter, dated 17 June 2008, from the applicant’s Member of Congress; and

	d.  miscellaneous chronological records of medical care, dated on various dates throughout the applicant’s military service.


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 records show he enlisted in the Regular Army on 5 August 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 15E (Pershing Missile Crewmember) and later held MOS 11M (Heavy Anti-armor Weapons Infantryman).  He was promoted to sergeant (SGT)/E-5 on 22 November 1983, staff sergeant (SSG)/E-6 on 1 May 1992, and sergeant first class (SFC)/E-7 on 1 November 1996.

3.  The applicant’s records show he was awarded the Army Commendation Medal (2d Award), the Army Achievement Medal (4th Award), the Good Conduct Medal (5th Award), the National Defense Service Medal, the Noncommissioned Officer’s Professional Development Ribbon with numeral 3, the Army Service Ribbon, the Overseas Service Ribbon (2d Award), the Parachutist Badge, the Pathfinder Badge, and the Drill Sergeant Identification Badge.

4.  On 30 December 1997, the applicant was involved in a traffic accident when the motorcycle he was riding struck a car that pulled in front of him.  He suffered pelvic pubic rami fractures, left ankle pain, and bilateral groin pain.  His injury was determined to be "In Line of Duty."

5.  On 16 April 1999, a Medical Evaluation Board (MEB) convened at Fort Hood, Texas, and determined that the applicant was medically unfit for duty due to pelvic pubic rami fractures, left ankle pain, and bilateral groin pain.  The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).  The MEB also noted the applicant did not desire to remain on active duty.  The applicant agreed with the findings and recommendations of the MEB on 28 April 1999.

6.  On 29 April 1999, an informal PEB convened at Fort Sam Houston, Texas, and found the applicant's medical condition prevented him from satisfactorily performing the duties of his grade and specialty.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), codes 5299 and 5003 for chronic pain, right wrists, bilateral groin and left ankle (status post fractures of wrist, pubic rami, and ankle, healed).  The PEB recommended a 20 percent disability rating and recommended the applicant be separated with entitlement to severance pay.  The applicant concurred with the PEB findings and recommendations, waived a formal hearing of his case, and indicated that he was counseled on TERA and waived his right to apply.

7.  The applicant was accordingly discharged on 18 June 1999.  The DD Form 214 he was issued at the time shows he was honorably discharged under the provisions of paragraph 4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and that he completed 17 years, 10 months, and 14 days of creditable active service.  Item 18 (Remarks) of the DD Form 214 shows he was entitled to $57,182.40 in disability severance pay.

8.  An advisory opinion, dated 3 September 2008, was obtained in the processing of this case.  The legal advisor to U.S. Army Physical Disability Agency (USPDA), Washington, DC, stated that the applicant requests a change in his disability rating to reflect disability retirement but cites no errors in the PEB proceedings.  The legal advisor further states:

	a.  On 29 April 1999, the applicant’s MEB was completed and listed his diagnosis that did not meet medical retention standards of pelvic pubic rami fracture, left ankle pain, and bilateral groin pain.

	b.  On 29 April 1999, an informal PEB found the applicant medically and physically unfit for duty.  The PEB awarded the applicant a 20 percent disability rating and recommended his separation with severance pay, in accordance with the USPDA’s "Guidance to Rating Pain" policy, dated 25 March 1999.  The applicant’s diagnosis of residual pain after healed injuries were not ratable under other VASRD codes as the medical findings did not meet the rating criteria for range of motion and other ratable measures.  The applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing along with his right to apply for TERA.

	c.  The Army Disability system is a performance base system and although Soldiers may have conditions that are unfitting, they do not equate to a findings of disability retirement unless the disabilities are rated at 30 percent or more, in accordance with Army Regulation 635-40, the Department of Defense Instruction 1332.38, and 10 U.S. Code, section 1201.  The PEB’s findings were supported with preponderance of evidence, and were not arbitrary or capricious, and were not in violation of any derivative, regulation, or statute.

	d.  The applicant could have applied for retirement in accordance with Title 10, U.S. Code, section 12731a, but he declined to do so and requested severance pay instead.  Having approximately 18 years of active duty service and a 20 percent disability rating, it was common practice in 1999 for the Secretary of the Army to approve such applications.  This agency would not object to the applicant having such a temporary retirement approved should he now so request.  This would provide him with the retirement privileges he indicated in his 12 July 2008 letter. After the amount of severance pay is deducted from his temporary early retirement pay, he would also receive retirement payments.  These retirement payments could be presently payable considering TERA would be approved from 1999.  The legal advisor finally concluded that he recommends no change to the applicant’s PEB findings.

9.  On 8 September 2008, the applicant was provided with a copy of the advisory opinion and on 25 September 2008, he concurred with the advisory opinion and stated that at this time, he would like to apply for early retirement under the Temporary Early Retirement Authority as mentioned in the advisory opinion.

10.  Public Law 102-484 provided the Secretary of the Army TERA during the active force drawdown period by authorizing the application of Title 10, U.S. Code, section 3914 provisions to enlisted members who had completed at least 15 but less than 20 years of service.  TERA was in effect during the active force drawdown period beginning in October 1992 and ending on 31 December 2001.  This law allowed each Secretary to prescribe additional eligibility requirements for such early retirement opportunity, including factors such as grade, years of service, and skill.

11.  Title 10, U.S. Code, section 1293, implemented the provisions of Public Law 102-484, dated 23 October 1992, which authorized a TERA.  In pertinent part, it provided the Secretary of Defense a temporary force management tool with which to affect the drawdown of military forces through fiscal year 1999.  It also provided that an enlisted member with at least 15 years, but less than 20 years of service could be retired for length of service.  It further provided that the Secretary of each military department could prescribe regulations and policies regarding the criteria for eligibility for early retirement by reason of eligibility pursuant to this section and for the approval of applications for such retirement.  Such criteria included factors such as grade, years of service and skill.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's initial contention that his narrative reason for separation should be changed from "Disability Severance Pay" to “Retirement” and later request to apply for early retirement under TERA was carefully considered.  However, there is insufficient evidentiary basis to support this requested relief.

2.  The evidence of record shows that the applicant underwent a MEB that referred him to a PEB.  The PEB found the applicant's medical condition prevented him from satisfactorily performing the duties of his grade and specialty and recommended the applicant be separated with entitlement to severance pay. The applicant concurred with the PEB findings and recommendations, waived a formal hearing of his case.  Furthermore, contrary to his contention, he indicated that he was counseled on TERA and waived his right to apply.

3.  In electing $57,182.40 of disability severance pay in connection with his discharge, the applicant knowingly waived his right to apply for TERA.  Even after he was counseled about his eligibility to apply for early retirement, the applicant indicated that he was counseled and waived his right to apply.  Ten years after his discharge, the applicant has not provided any basis, other than his desire, to now seek TERA.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout his disability processing.  There does not seem to be an error or an injustice.

4.  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.  In view of the foregoing, there is no basis for granting the applicant's request.

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.


															XXX
      _________________________
                 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)                                         AR20080010572



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010572



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1