IN THE CASE OF:	  

		BOARD DATE:	        04 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012048 


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 discharge be voided and that he be granted a 15-year retirement. 

2.  The applicant states that not only was he not informed he could have been retired with 15 years of service, he was also not informed on the provisions of the Voluntary Separation Incentive (VSI) or the provisions for recouping severance pay when receiving disability compensation from the Department of Veterans Affairs (VA). 

3.  The applicant provides a copy of his DD Form 214 and a letter from the VA indicating that he is rated as 40% disabled and is receiving $380.00 per month, effective 1 December 2007. 

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 served in the Regular Army from 5 January 1982 to 4 October 1985 and he served in the National Guard from 7 October 1985 to 19 November 1985.

3.  On 22 November 1985, he enlisted in the United States Army Reserve (USAR) under the delayed entry program.  On 18 February 1986, he enlisted in the Regular Army for a period of 4 years and training as a Patriot Operator/System Mechanic in military occupational specialty (MOS) 24T. 

4.  He completed his training and remained on active duty through a series of reenlistments.  He was promoted to the pay grade of E-6 on 1 March 1995.

5.  The facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his DD Form 214 reflects that he was honorably discharged on 24 May 1997, under the provisions of Army Regulation 635-40, paragraph 4-24b (3), due to disability  with severance pay.  He had served 15 years and 7 days of total active service and was paid $46,720.80 in separation pay benefits.

6.  In 1993, Congress approved the Temporary Early Retirement Authority (TERA) to be used as a drawdown tool.  This measure allowed the Army to offer early retirement to certain Soldiers who had at least 15, but not yet 20 years of service.  Early retirement is not an entitlement and the Army offered it only to selected Soldiers in excess grades and skills.  The Army continued to use the TERA through Fiscal Year 1999 (FY(99), primarily for officers in excess skill areas not selected for promotion and for sergeants with over 18 years of service who had been barred from reenlistment or who have declined continued service. FY99 was the last year the TERA was in effect.  MOS 24T was not an excess skill.

7.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  A disability rating of 30% or higher as determined by the Physical Disability Evaluation System (PDES) entitles a Soldier to retirement benefits.

8.  The Voluntary Separation Incentive Program was designed to support the Army’s drawdown.  Headquarters, Department of the Army (DA) Message 281802Z, dated in January 1992, clarified issues associated with the voluntary separation incentive (VSI) program via a question and answer format.  It stated, that soldiers approved for VSI would be paid in annual installments commencing on their departure date from active duty, and on each anniversary date thereafter for twice the number of years on active duty, provided the soldier continues to serve in the Ready Reserve.  It also stipulated that VSI annual payments would be discontinued if the member is separated from the Ready Reserve unless the individual becomes ineligible to continue to serve due to medical or age limitations in which case the soldier will be transferred to the Standby Reserve or the Retired Reserve.  VSI was only offered to Soldiers in an excess MOS by skill level and the list was updated on a continuous basis.  The applicant's MOS was not one of the specialties that was offered the VSI.  The VSI Program was cancelled in June 1998.

DISCUSSION AND CONCLUSIONS:

1.  Inasmuch as the PEB proceedings are not present in the available evidence for the Board to review, it must be presumed that the applicant’s disability was properly rated in accordance with the VA Schedule for Rating Disabilities (VASRD) and his separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

3.  The applicant’s contention that he should have received a 15-year retirement under the TERA has been noted and found to lack merit.  The TERA was available only to Soldiers serving in an excess specialty and the applicant's MOS was not one of the specialties designated at the time of the applicant’s discharge; accordingly, he was not entitled to consideration under that program.  Therefore, lacking evidence to show otherwise, there appears to be no basis to grant his request.

4.  The applicant's contention that he was not informed of the provisions of the VSI have also been noted; however, he was not entitled to consideration under that program because his grade and specialty was not announced as one of the specialties that was deemed excess to the needs of the Army or qualified for separation under that program.  Additionally, he could not have met the requirement to serve in the USAR by virtue of his physical disability.  Accordingly, there appears to have been no need to notify the applicant of the program.  

5.  Inasmuch as the applicant's separation proceedings are not available for review by the Board, there is no indication as to whether the applicant was informed that his separation pay would be recouped by the VA if he elected to receive VA disability compensation.  However, assuming that he was not informed, the lack of that information does not deprive him of any benefits to which he may be entitled.

6.  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 that requirement.

7.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20080012048



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ABCMR Record of Proceedings (cont)                                         AR20080012048



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