IN THE CASE OF:	

		BOARD DATE:	16 July 2009  

		DOCKET NUMBER:  AR20090002135 


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 that her disability retirement be changed to a 20-year active duty retirement and that she be promoted to staff sergeant (SSG)/E6 with all back pay and allowances.  Additionally, she requests that two awards of the Army Commendation Medal (ARCOM) be added to her DD Form 214 (Certificate of Release or Discharge from Active Duty).  The applicant also requests that she be issued a retirement discharge certificate and a US flag.

2.  The applicant states that on 28 December 2006, she was notified that she had 19 qualifying years of service for retirement and she applied for retirement one year later.  She offers that she was placed on the Temporary Disability Retirement List (TDRL) in April 2008.  The applicant maintains that prior to receiving her 19 year letter, her retirement points were updated and all her active duty points were correct.  However, after requesting retirement, she maintains that her retirement points were adjusted and she lost points.  The applicant adds that her active duty training, consisting of a 6-year period, was removed.  The applicant also maintains that her 1977 DD Form 214 credits her with 2 years and 11 months of active duty service and it should be listed as 3 years, 11 months, and 29 days to reflect her 1 year extension in Germany. 

3.  The applicant states, in effect, that she met all the requirements for promotion to SSG/E6 and received promotion orders.  However, she was later informed that due to an administrative error, her orders were revoked.  She offers that since the revocation of her orders, she has been going through a medical review board 
and was promoted to the next higher grade.  The applicant states that outside of her medical disabilities, she has more than excelled in the required areas and should have been promoted.

4.  The applicant provides two award certificates for the ARCOM, promotion orders and revocation of those orders, DD Forms 214, self-authored calculations of service, ARPC Forms 249-2-E (Chronological Statements of Retirement Points (RPAS)), Notification of 19 Qualifying Years of Service for Retirement memorandum, retirement orders, DA Form 4187 (Personnel Action), and her Physical Evaluation Board (PEB) Proceedings. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that she originally enlisted in the Regular Army on 23 August 1977 and she reenlisted several times in both the Regular Army and in the United States Army Reserve (USAR).  She was retired for physical disability on 23 April 2008. 

2.  The applicant received three DD Forms 214 for her Regular Army active duty service which equals 9 years, 11 months, and 8 days.  The periods of service covered by these three DD Forms 214 are as follows:

a. the DD Form 214 covering the period of service from 23 August 1977 to 
21 August 1980 shows she completed 2 years, 11 months, and 29 days of active service;

b. the DD Form 214 covering the period of service from 5 December 1981 to 
28 February 1983 shows she completed 1 year, 2 months, and 24 days of active service; and
   
c. the DD Form 214 covering the period of service from 5 June 1986 to 
18 February 1992 shows she completed 5 years, 8 months and 14 days of active service.

3.  Orders 074-0307, dated 14 March 2008, show the applicant was released from her assignment because of physical disability and placed on the Temporary Disability Retired List (TDRL).  Her component was listed as USAR and these orders show that she completed 19 years, 5 months, and 7 days for disability retirement purposes.

4.  The applicant's DD Form 214 for the period of service from 26 October 1998 to 23 April 2008 shows her component as USAR.  She was credited with completing 9 years, 5 months, and 28 days of net active service.  Additionally, this form shows her rank/grade as sergeant (SGT)/E5 with a date of rank listed as 2 August 1980.  Item 18 (Remarks) contains the statement "Soldier has been presented with a US Flag."  The reason for separation is listed as temporary disability.

5.  The applicant's self-authored calculations show that she calculated her active duty service as being 20 years, 10 months, and 16 days based on the following periods:

   a.  DD Form 214 from 1977 to 1981, 3 years, 11 months, and 29 days;

   b.  DD Form 214 1981 to 1983, 1 year, 2 months, and 24 days;
   
   c.  DD Form 214 1986 to 1992, 5 years, 8 months, and 14 days; and

   d.  DD Form 214 1998 to 2008, 9 years, 11 months, and 9 days.

6.  The applicant provided four RPAS statements, dated 30 November 2002,      9 March 2007, 17 May 2007, and 14 November 2007.  The RPAS statements dated 30 November 2002 and 9 March 2007 show the applicant's status for the period beginning on 9 June 1980 and ending on 8 June 1981 as Regular Army, active duty, and credit her with 365 active duty points and a qualifying year towards retirement.  The 17 May 2007 and 14 November 2007 RPAS statements show the period of 22 August 1980 to 4 December 1981 as a "Break" in service.  She was not granted a qualifying year and received "0" active duty points.  The RPAS statement dated 14 November 2007 shows the applicant had 19 years,  10 months, and 17 days of qualifying service for a non-Regular retirement as of 20 July 2007.  She was credited with completing 9 years, 8 months, and 25 days of her total qualifying years while in a USAR/Active Guard Reserve status. 

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 dated 23 April 2008, does not list the award of the ARCOM.  Permanent Order Number 072-17, dated 13 March 2002, awarded her the ARCOM for outstanding performance of duty while assigned as the Administrative Sergeant from 1 July 1999 to 30 September 2001.  Additionally, Permanent Order Number 344-04, dated 10 December 2002, awarded the applicant the ARCOM for meritorious service while assigned as the Personnel Service Noncommissioned Officer from 13 November 2001 to 
22 November 2002. 

8.  Orders 04-062-00002, dated 2 March 2004, show that the applicant was promoted to SSG with an effective date and date of rank of 1 March 2004.  The order stated that promotion was not valid and the order would be revoked if the applicant was not in a promotable status on the effective date of the promotion.  On 17 March 2004, the applicant's promotion order was revoked. 

9.  The applicant requested voluntary retirement and signed her DA Form 4187 on 10 December 2006.  On 28 December 2006, the applicant was notified of having completed 19 qualifying years of service.

10.  On 27 November 2007, the applicant underwent a PEB in which she was found physically unfit with a combined disability rating of 70 percent.  She was placed on the TDRL.  On 15 January 2008, the applicant concurred with the PEB and waived her rights to a formal hearing. 

11.  On 1 July 2009, the Defense Finance and Accounting Service (DFAS) located in Cleveland, Ohio, verified that the applicant was currently receiving disability retirement pay which was being offset by Department of Veterans Affairs disability compensation.   

12.  Army Regulation 635-5 (Personnel Separations) established standardized procedures for the preparation and distribution of the DD Form 214.  It establishes standardized policy for the preparation of the DD Form 214.  The regulation states, in pertinent part, to enter in item 12a, the date entered active duty this period for which a DD Form 214 was not previously issued. 

13.  Additionally, the regulation states that the DD Form 363A (Certificate of Retirement) will be issued to all retiring Soldiers, except those on the TDRL.

14.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) provides, in pertinent part, that upon a Soldier's application for retired pay, a computation to determine the number of years of qualifying service, years for percentage purposes, and years for basic pay purposes will be made.  When local records available in the Reserve units do not conclusively establish the Soldier's creditable service, and completion of 20 years qualifying service, the area commanders will request CG, Human Resources Command (HRC), St. Louis, to verify the doubtful period(s) of service.  Area commanders will make maximum efforts to locate missing and unaccounted for retirement point records (to include inquiry with the servicing DPA). 

15.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, identifies categories of Soldiers in a nonpromotable status.  The regulation states, in pertinent part, that a Soldier will not be advanced or promoted as long as she is in any of the following categories: (1) Being processed for discharge from the USAR; (2) Ineligible for immediate reenlistment or extension in the USAR per Army Regulation 140-111 (USAR Reenlistment Program); (3) A Soldier who is unable to undergo an Army Physical Fitness Test because of conditions beyond her control; and (4) Does not meet the retention medical fitness standards in Army Regulation 40-501.

16.  The Fiscal Year 2004 National Defense Authorization Act provided a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose VA disability rating is fifty percent or greater.  This provision is referred to as Concurrent Retirement and Disability Pay (CRDP).  The provisions of this law were changed so that qualified disabled military retirees receive their full military retirement pay and their VA disability compensation.  To qualify for concurrent receipt members must be either an active duty military retiree with 20 or more years of service or a National Guard or Reserve Component Soldier with 20 or more qualifying years for retirement.  Service members retired under disability provisions must also have 20 or more qualifying years of service.  

17.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214, dated 21 August 1980, shows that she was credited with completing 2 years, 11 months, and 29 days of active duty service.  Regardless of her claim that she extended her enlistment for 1 year while in Germany and that her DD Form 214 should reflect the additional year, she has provided no evidence to substantiate her claim.  Further, her DD Form 214, dated 23 April 2008, shows her net active service this period equals 9 years, 
5 months and 28 days and not 9 years 11 months and 9 days as indicated in her self-authored calculations.   

2.  Additionally, between the applicant's active duty service shown on her first DD Form 214 for the period from 23 August 1977 to 21 August 1980 and her second DD Form 214 for the period 5 December 1981 to 28 February 1983 there is a period of unaccountable time from 22 August 1980 to 4 December 1981.  The applicant has provided no corroborating documentation to prove that this time should have been counted as Regular Army time as indicated on her RPAS statement dated November 2002 and March 2007.  It appears the applicant's RPAS statement was later corrected to reflect her break in service.  She has provided no evidence to dispute those corrections.  
3.  It appears that the applicant is requesting a 20 year retirement so that she can establish eligibility for CRDP.  As stated in paragraph 19 of this document, to qualify for concurrent receipt members retired under disability provisions must have 20 or more qualifying years of service.  The evidence of record clearly shows that the applicant was found to be physically unfit for duty with a combined disability rating of 70 percent.  She concurred with the PEB findings, waived her rights to a formal hearing and was subsequently placed on the TDRL.  She had completed less than 20 years of service at the time she was medically retired.  There is no evidence and the applicant has not provided any to show that she qualifies for a 20 year retirement.  In view of the above, the Board does not correct properly constituted records just to establish entitlement to a benefit.

4.  The applicant also requests that she be promoted to SSG/E6 with all back pay and allowances.  The exact reason for the revocation of the applicant's promotion to SSG is unknown.  However, one can only assume that the applicant was in a nonpromotable status at the time the orders were cut and therefore, the orders were revoked.  The applicant has provided no evidence to discount the presumption of regularity.

5. Permanent Order 072-17, dated 13 March 2002 and Permanent Order 344-04, dated 10 December 2002 show that the applicant was awarded two awards of the ARCOM.  Therefore, she is entitled to have her DD Form 214 corrected to show these awards. 

6. The applicant requests that she be issued a retirement discharge certificate.  However, as specified by the regulation, a retirement discharge certificate will not be issued to retiring Soldiers on the TDRL.

7.  The applicant's DD Form 214 states "Soldier has been presented with a US Flag."  However, even if she was not presented this flag, as specified on her DD Form 214, there is no provision in the regulation for the Army to issue a US flag to retiring and/or retired Soldiers. 

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 adding two awards of the ARCOM to the applicant's last DD Form 214.

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 changing her disability retirement to a 20-year active duty retirement, promotion to SSG/E6 with back pay and allowances, retirement discharge certificate, and a US flag.




      _______ _   _X______   ___
       	   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)                                         AR20090002135



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ABCMR Record of Proceedings (cont)                                         AR20090002135



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