IN THE CASE OF:	  

		BOARD DATE:	  	  4 November 2008

		DOCKET NUMBER:  AR20080013029 


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 the amount of her severance pay be corrected.  She also requests correction of her records to show she was promoted to pay grade E-4.

2.  The applicant states that "I had a med board review and signed a contract for receiving $10,686.60 for severance pay, i had been dealing with this injury for 2 yrs and decided to just get it over with.  I received only $2,300 and was told that a mistake was made on the contract i signed.  I would not have signed it for that amount, also i did not receive my promotion to E-4 for time in grade."

3.  The applicant provides a copy of an Information Paper, dated 24 March 2008; her Physical Evaluation Board (PEB) proceedings; her PEBLO (Physical Evaluation Board Liaison Officer) Counseling Checklist/Statement; her Medical Evaluation Board (MEB) proceedings; her discharge orders from the Army National Guard of the United States (ARNGUS), dated 28 April 2008; a memorandum, subject:  Physical Disability Separation, [name], PFC, [social security number], dated 28 April 2008; and her discharge orders from the Army National Guard and as a reserve of the Army, dated 22 May 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Florida Army National Guard on 20 April 2005 in pay grade private, E-1 (later corrected to show she enlisted in pay grade private first class, E-3).  She was ordered to active duty for training (ADT) on 31 May 2005.  At the completion of ADT on 9 December 2005, she was awarded military occupational specialty 91W (Health Care Specialist).

2.  The applicant was evaluated by an MEB on 28 January 2008.  She was diagnosed as having chronic low back pain due to DDD [degenerative disc disease] at L4/L5 on an MRI [Magnetic Resonance Imaging] in (December) 2005.  She was referred to a PEB.

3.  An informal PEB convened on 20 March 2008.  The PEB proceedings described the applicant’s condition as lumbar degenerative disc disease, which interfered with her ability to perform duties as a 68W (Health Care Specialist).  The PEB found the applicant physically unfit with a combined rating of 10 percent and recommended that she be separated with severance pay.  The applicant signed the PEB proceedings on 24 March 2008.  She concurred with the findings and recommendations of the PEB and waived a formal hearing of her case.  

4.  The DA Form 199 (PEB Proceedings), dated 20 March 2008, explained how severance pay is computed (Disability severance pay, as changed by the National Defense Authorization Act (NDAA) of Fiscal Year 2008, is computed by multiplying monthly basic pay for two months by the number of combined years (but not over 19) of active service and inactive duty points (to include membership points)).  The number of years for purposes of the calculation is not less than 6 years if the disability was determined to have been incurred in the line of duty in a combat zone or incurred during the performance of duty in 
combat-related operations, and no less than 3 years for all other Soldiers.  

5.  The applicant provided an Information Paper prepared by her PEBLO on 24 March 2008 which indicates the approximate amount of her severance pay as $10,686.60 minus Federal income taxes of $2,992.25 for a total of $7,694.35.  She was informed that if she paid State income tax, it would also be subtracted.  The PEBLO had indicated she had 3 years of active service.

6.  Department of the Army, United States Army Physical Disability Agency, Washington, D.C., Orders Number D-119-03, dated 28 April 2008, discharged the applicant from the ARNGUS effective 2 June 2008 under the provisions of Army Regulation 635-40 by reason of physical disability with severance pay.  These orders show she was authorized disability severance pay in the grade of PFC based on 0 years, 8 months, and 12 days of service as computed under section 1208, Title 10, United States Code.  

7.  Departments of the Army and the Air Force, Florida National Guard, St. Augustine, Florida, Orders Number 143-001, dated 22 May 2008, discharged the applicant from the Army National Guard and as a reserve of the Army effective 2 June 2008 under the provisions of National Guard Regulation 
600-200, paragraph 8-35l(8), by reason of being medically unfit for retention per Army Regulation 40-501 and Army Regulation 635-40.  These orders show her rank of PFC on the standard name line.

8.  Her NGB Form 22 shows she was discharged from the Army National Guard on 2 June 2008 in the rank of PFC, E-3.  She completed 3 years, 1 month, and 13 days total service for pay. 

9.  There is no evidence of record which shows the applicant was promoted to pay grade E-4.  There is also no evidence which shows she was recommended for promotion to E-4.  

10.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-24b(3) lists separation for physical disability with severance pay.

11.  Implementation Policy, chapter 7 (Enlisted Promotion and Reduction of ARNG Personnel), prescribes policies, procedures and systems to advance, promote, laterally appoint, reduce and restore in grade for all ARNG and ARNGUS enlisted Soldiers, except those included in the end-strength of the Regular Army and who are covered by the active Army promotion system.  Paragraph 7-30a(1) states that the eligibility criteria for advancement to specialist (SPC) is 24 months time in service (TIS) waivable to 12 months, and 4 months time in grade (TIMIG) waivable to 2 months.  This regulation also states that a PFC may be advanced to SPC with the concurrence of the unit commander.  

12.  Implementation Policy, chapter 7, subparagraphs 7-27a, 7-27c, and 7-27f, state that Soldiers must be in a promotable status on the effective date of advancement.  Commanders may advance outstanding Soldiers with waivers authorized in paragraphs 7-28 through 7-30.  Unit commanders will ensure that Soldiers who are eligible for advancement without waiver, or under one of the special programs in Section II of this chapter, but who are not recommended, are counseled in writing using DA Form 4856 (Developmental Counseling Form).

DISCUSSION AND CONCLUSIONS:

1.  A 20 March 2008 informal PEB found the applicant unfit for military service for lumbar degenerative disc disease at a 10 percent combined disability rating.  As a result, she was discharged from the Army National Guard and as a reserve of the Army on 2 June 2008 due to disability with entitlement to severance pay.  She completed 3 years, 1 month, and 13 days total service for pay at that time.

2.  However, Department of the Army, United States Army Physical Disability Agency, Washington, D.C., Orders Number D-119-03, dated 28 April 2008, which discharged the applicant from the ARNGUS, erroneously reflect that she was authorized disability severance pay in the grade of PFC based on only 8 months and 12 days of service.

3.  The NDAA for Fiscal Year 2008 provided a minimum of 3 years would be used for the purpose of calculating disability severance pay.  

4.  It appears that an error has occurred in this case regarding the calculation of the applicant's disability severance pay.  Therefore, it would be appropriate to amend Department of the Army, United States Army Physical Disability Agency, Washington, D.C., Orders Number D-119-03, dated 28 April 2008, to reflect that she is authorized disability severance pay based on 3 years of service.  

5.  There is no evidence of record which indicates the applicant was advanced to E-4 prior to her discharge on 2 June 2008.  In the absence of evidence to the contrary (such as a statement from her commander), it is presumed that she was properly not advanced to E-4.  Therefore, there is insufficient evidence to correct the applicant’s records to show she was advanced to pay grade E-4.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___XX_____  ____XX____  __XX______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Department of the Army, United States Army Physical Disability Agency, Washington, D.C., Orders Number D-119-03, dated 28 April 2008, to show she was authorized disability severance pay in the grade of PFC based on 3 years of service as computed under section 1208, Title 10, United States Code.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of her records to show she was advanced to pay grade E-4.  



      ____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)                                         AR20080013029





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ABCMR Record of Proceedings (cont)                                         AR20080013029



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