IN THE CASE OF:
BOARD DATE: 8 January 2009
DOCKET NUMBER: AR20080016597
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, a 20-year retirement.
2. The applicant states that he was never provided an opportunity for retirement with 20 years of active duty. He contends that he was placed before a medical evaluation board (MEB) and was not allowed to extend due to medical reasons. He points out that he had over 50 days of accrued leave and had only 3 days to out-process. He claims that with his accrued leave he had the time needed for 20 years of service, that the MEB did not consider his years of service, and that he could have used the 50 days for terminal leave to look for a job.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 July 1993.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 17 September 1973 and trained as an administrative specialist and personnel sergeant. He remained on active duty through continuous reenlistments until he was retired on 23 July 1993 by reason of permanent physical disability with a 40 percent disability rating. His DD Form 214 indicates he was paid for 50 days of accrued leave.
3. The applicant's DD Form 214 for the period ending 23 July 1993 shows he completed a total of 19 years, 10 months, and 7 days of creditable active service.
4. There is no evidence of record which shows the applicant completed 20 years of active duty.
5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The regulation states, in pertinent part, that a Soldier may not be retained or separately solely to increase retirement or separation benefits. Paragraph 3-14a of the regulation in effect at the time stated that separation or retirement should normally have occurred within 20 days of the date of the final determination of unfitness by the Secretary of the Army. However, Soldiers are entitled to use accrued leave in excess of that which could not be sold back to the Government.
6. Army Regulation 635-200 (Personnel Separations), chapter 12, sets the policies and procedures for voluntary retirement of Soldiers because of length of service. In pertinent part, it states that a Soldier who has completed 20 years active federal service and who has completed all required service obligations is eligible to retire.
7. Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a VA disability pension. Under the law prior to 2004, a veteran could only be compensated once for a disability. If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA pension and military retirement. The new law did not apply to disability retirees with less than 20 years of service and retirees who have combined their military time and civil service time to qualify for a civil service retirement. It did apply to those retired under TERA.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were noted. However, the governing regulation states that a Soldier may not be retained or separated solely to increase retirement or separation benefits. In addition, the applicant was not entitled to transition leave since he was able to sell all of his accrued leave back to the Government.
2. Evidence of record shows the applicant completed 19 years, 10 months, and 7 days of creditable active service when he retired. Regrettably, there is no basis for granting the applicants request for a length of service retirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ 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.
_________________________
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) AR20080016597
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ABCMR Record of Proceedings (cont) AR20080016597
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