IN THE CASE OF:	  

		BOARD DATE:	        19 MAY 2009

		DOCKET NUMBER:  AR20080018941 


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, in two separate applications, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 23 September 1999 through 12 September 2004 to show that he completed 15 years, 5 months, and 27 days of qualifying service for retired pay; and that he be granted a 15-year retirement or offered the opportunity to continue on active duty (COAD) or continue in an active Reserve (COAR) status.

2.  The applicant states that his ARPC Form 249-E (Chronological Statement of Retirement Points) reflects that he had 15 years, 5 months and 27 days of service; however, his DD Form 214 reflects only 14 years, 7 months and 24 days of service.  He states that he enlisted in the Army on 16 March 1989 and that he was honorably discharged for medical reasons on 12 September 2004.  He states that he served in the Army over 15 years and only received severance pay at the time of his discharge.  He states that his medical discharge was mandated by the Department of the Army and that it was not his personal choice.  He states that he believes that an administrative error occurred during his medical separation process because he was not given credit for his full 15 years, 
5 months, and 27 days of service.  The applicant goes on to provide details regarding his knee surgeries and the numerous promotions that he received during his military career.  He states that he was awarded a 40 percent service connected disability rating by the Department of Veterans Affairs (VA) and that his VA benefits have been reduced as a result of the severance pay that he received at the time of his separation.


3.  The applicant provides in support of his application a self-authored statement addressed to the Army Review Boards Agency, dated 11 September 2008; a copy of his Medical Evaluation Board (MEB) Summary, dated 27 April 2004; a copy of his ARPC Form 249-E, dated 15 August 2008; a copy of his DD Form 214 for the period 23 September 1999 through 12 September 2004; and a copy of a letter addressed to him from the VA, dated 16 April 2008.

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.  On 16 March 1989, the applicant enlisted in the United States Army Reserve (USAR) in Miami, Florida, under the Delayed Entry Program (DEP), for 8 years, in the pay grade of E-1.  He enlisted in the Regular Army (RA) for 4 years on 19 January 1990 and he successfully completed his training as a personnel services specialist.  

3.  The applicant remained on active duty through a series of reenlistments and extensions and he was promoted through the ranks to the pay grade of E-6.

4.  On 22 September 1999, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-1A(1) to accept a commission or warrant in the Army.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he completed 9 years, 8 months, and 4 days of net active service this period.  

5.  On 23 September 1999, the applicant accepted an appointment as a Reserve commissioned officer in the rank of second lieutenant and he was ordered to active duty for 3 years on the same day.  He was promoted to the rank of first lieutenant on 23 March 2001 and he was promoted to the rank of captain on 1 December 2002.


6.  The MEB summary that the applicant provides in support of his application shows that he was examined on 27 April 2004 to determine whether he should be referred to a Physical Evaluation Board (PEB).  The MEB summary shows, in effect, the applicant first injured his knee in basic training in 1990 with a jump and fall landing onto a rock.  He underwent an arthroscopic meniscectomy for the injury in early 1991 with a diagnosis of anterior cruciate ligament deficiency, which was unreconstructed.  He did okay for awhile and maxed several physical therapy tests over several years.  He complained of pain and instability such that by 2001, a decade later, he began complaining of increased instability and giving way.  He underwent arthroscopy with debridement and further near total medial meniscectomy with a diagnosis of posttraumatic arthritis, and then degenerative joint disease with a chronic anterior cruciate ligament deficiency which was again not reconstructed.  He improved a little for some time, but still complained of laxity and inability to fully recover.  He was given a P2 profile for an alternate aerobic event (bike test).  His third surgery was performed on 22 January 2004.  He underwent a high tibial osteotomy with chondroplasty of degenerative chondral lesions diffusely about all 3 compartments of the knee.  Doctors were hoping that he was indicated at that time for a meniscal transplant and anterior cruciate ligament reconstruction.  Unfortunately, there were too advanced stages of severe posttraumatic 3 compartment degenerative arthritis to allow for the advanced technically demanding soft tissue reconstructive and transplant procedures.  

7.  The MEB diagnosed the applicant with chronic posttraumatic severe
3 compartment osteoarthritis, status post healed high tibial osteotomy for a chronic deficiency of the anterior cruciate ligament, a subtotal medial meniscectomy and diffuse chondral lesions in all 3 compartments.  The MEB determined the applicant did not meet retention standards in accordance with Army Regulation 40-501, chapter 3-14c.  He had an inability to perform his duties in his specialty and he had no hope of returning to a fully functional status in his specialty.  Although he was not indicated for surgery at the time, he may need surgery in the future.  His prognosis was poor for full recovery.  The MEB recommended that the applicant’s case be forwarded to a PEB for final adjudication and removal from service.

8.  The PEB proceedings and recommendation are not in the available record.  However, the applicant’s records show that he was honorably discharged with severance pay on 12 September 2004, under the provisions of Army Regulation 635-40, paragraph 4-24B(3), due to a disability. 



9.  The DD Form 214 that the applicant was furnished at the time of discharge shows that he had completed 4 years, 11 months, and 20 days of net active service this period; and that he had 9 years, 8 months and 4 days of total prior active service.  

10.  The ARPC Form 249-E, dated 15 August 2008, that the applicant submits in support of his application shows that he had 15 years, 5 months, and 27 days of qualifying service for retired pay.  It also shows that he was a commissioned officer in the RA from 16 March 1989 through 11 September 2004.

11.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the entry in block 12a. will be the beginning date of the continuous period of active duty for issuance of the DD Form 214, for which a DD Form 214 was not previously issued.  In block 12d. (Total Prior Active Service), enter the total amount of prior active military service from previously issued DD Forms 214.  In block 12e. (Total Prior Inactive Service), enter the total amount of inactive service from previously issued separation documents.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in that block.  DEP time will be entered in the block 18. (Remarks).

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Chapter 6 prescribes the criteria and procedures under which Soldiers who have been determined unfit by the Physical Disability Evaluation System (PDES) may be granted COAD or COAR status as an exception to policy.  It provides, in pertinent part, that the primary objective of this program is to conserve manpower by effective use of needed skills or experience.  A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation.  Continuation in a military status is generally subject to the Soldier's consent.  However, the Secretary of the Army (SA), or his or her designee, may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation or special skill and experience.  

13.  Army Regulation 635-40 states that COAD applies to officers on the active duty list; Regular Army enlisted Soldiers; and Soldiers in the Active Guard Reserve (AGR) or on full-time National Guard duty (FTNGD) and requesting continuation as AGR or FTNGD.  COAR applies to AGR Soldiers requesting to 


continue as members of the Individual Ready Reserve (IRR) or as  troop program unit (TPU) members, FTNGD Soldiers requesting to continue as drilling unit members; and Army National Guard unit members, U. S. Army Reserve TPU members, IRR members, and Individual Mobilization Augmentees.  

14.  Army Regulation 635-40 states that to be considered for COAD or COAR, a Soldier must:  (a) For COAD, have 15 but less than 20 years of active Federal service; for COAR, have a total of 15, but less than 20 years of qualifying service for nonregular retirement; and (b) Be qualified in a critical skill or shortage military occupational specialty.  Such qualification must be confirmed in writing by the applicable personnel office and attached to the request; or (c) have a disability that resulted from combat or terrorism. 

15.  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 was 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.

16.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Accounting Records) states that only Ready Reserve Soldiers (other than Reserve Officers' Training Corps and DEP Control Group Soldiers) and Active Standby Reserve are authorized retirement point credit.

17.  Title 38, United States Code, sections 310 and 331, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.



18.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

19.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

20.  Title 10, United States Code, section 1212(c), states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 for the period 23 September 1999 through 12 September 2004 should be corrected to show that he had completed 15 years, 5 months, and 27 days of qualifying service for retired pay; and that he be granted a 15-year retirement or offered COAD or COAR.

2.  The applicant’s contentions have been considered.  However, the applicant enlisted in the USAR under the DEP on 16 March 1989 and he did not enlist in the RA until 19 January 1990.  In accordance with the applicable regulation, his service in the DEP is not creditable for retired pay purposes and therefore should not be reflected on his DD Form 214 as creditable service.  Nevertheless, his service in the DEP should have been reflected in block 18. (Remarks) on his DD Form 214 for the period ending 22 September 1999.



3.  During the applicant’s last period of service he completed 4 years, 11 months, and 20 days of net active service and he completed 9 years, 8 months, and 
4 days of total prior active service.  The two periods combined equals a total of 14 years, 7 months, and 24 days of active Federal service for pay purposes and this information is properly reflected on his DD Form 214 that was issued on 
12 September 2004.  The 15 years, 5 months, and 27 days reflected on his ARPC Form 249-E as qualifying for retirement is incorrect.  By regulation, his service in the DEP did not qualify for earning points for nonregular retired pay purposes, either.  

4.  Additionally, the applicant did not qualify for COAD or COAR.  He did not meet any of the criteria contained in Army Regulation 635-40 to be approved for either program and TERA was not in effect at the time of his discharge.  Therefore, he was not eligible for a 15-year retirement.

5.  The applicant’s contentions regarding his reduced pay from the VA have been considered.  Such a reduction is in accordance with statute.  The applicant was discharged with severance pay and he has provided no evidence to support his contentions that an error was made during his discharge process which resulted in him being credited with the incorrect amount of service or that he was eligible for a 15-year retirement. 

6.  In view of the forgoing, it would now be in the interest of justice to correct the applicant’s records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X_____  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 block 18. (Remarks) on his DD Form 214 dated 22 September 1999 to show that he had a period of DEP from 16 March 1989 to 18 January 1990.

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 correcting his DD Form 214 to show that he had 15 years, 5 months, and 27 days of qualifying service for retired pay and granting him a 15-year retirement or any other benefits.




      _______ _ 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)                                         AR20080018941



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ABCMR Record of Proceedings (cont)                                         AR20080018941



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