IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090004126 


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, issuance of Notification of Eligibility for Retired Pay at Age 60 (15 Year Letter).

2.  The applicant states, in effect, he never received a 15 Year Letter. 

3.  The applicant provides an Army National Guard (ARNG) retirement points history statement, DD Form 214 (Certificate of Release or Discharge from Active Duty), a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), active duty retirement orders, and ARNG discharge orders in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show while serving as a member of the New York ARNG, in the rank of sergeant (SGT), the applicant was ordered to active duty in support of Operation Iraqi Freedom (OIF) on 15 May 2004.

2.  On 14 December 2007, orders were issued at Fort Dix, New Jersey which directed the applicant's release from active duty (REFRAD), on 27 January 2008, by reason of physical disability-temporary, and placement on the Temporary Disability Retired List (TDRL), on 28 January 2008.  These orders indicate the applicant's disability was based on a combat related injury or disease he received in the line of duty.  He was also assigned a 40 percent (%) disability rating.


3.  The DD Form 214 issued to the applicant upon his REFRAD on 27 January 2008 shows he was honorably separated after completing a total of 5 years, 
7 months, and 14 days of active duty service and he had completed a total of 
15 years, 8 months, and 10 days of prior inactive service.  It also shows he was separated under the provisions of Army Regulation 635-40, paragraph 2-24B(2) and that he was placed on the TDRL in the rank of SGT.

4.  During the processing of this case an advisory opinion was obtained from the office of the Chief, Personnel Division, NGB and the recommendation is that the applicant's request be denied based on his current status on the TDRL.  NGB officials indicate, in effect, that under the governing regulation, a Soldier on the TDRL must undergo periodic medical examination and review by a Physical Evaluation Board (PEB) at least once every 18 months to determine if there is any change in the temporary disability that resulted in placement on the TDRL.  During these reexaminations, a Soldier may be found fit and be required to return to duty.  Therefore, the issuance of a 15-Year Letter would not be appropriate until the applicant’s permanent status is determined through medical channels. 

5.  The applicant was provided a copy of the advisory opinion, on 25 June 2009, for him to have the opportunity to reply to or rebut the contents.  To date, he has failed to respond.  

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and 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.  

7.  Paragraph 3-4 of the same regulation provides that to be eligible to receive retirement and severance pay benefits, a disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

8.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability, and equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of a Soldier referred to the board.  The PEB evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, the PEB makes a finding and recommendation required by law to establish the eligibility of a Soldier to be separated or retired because of a physical disability.

9.  Paragraph 3-9 of the same regulation provides that the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The 
Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of
30 percent or the Soldier must have 20 years of service computed under Title 10, U. S. Code, Section 1208, (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

10.  Paragraph 7-4 of the same regulation states, in pertinent part, that a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired. 

11.  Title 10 of the United States Code, section 12731 provides the legal authority for age and service requirements for non-regular retired pay.  It states, in pertinent part, that members are entitled to retired pay when they are at least 
60 years of age and have performed at least 20 years of service.  Section 12731b provides the special rule that allows members with physical disabilities not incurred in the line of duty entitlement to early non-regular retirement.  It states, in pertinent part, that a member of the Selected Reserve of a Reserve Component who no longer meet the qualifications for membership in the Selected Reserve solely because the member is unfit due to physical disability, may be treated as having met the service requirements for non-regular retirement if the member completed at least 15 years and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be issued a 15 Year Letter has been carefully considered.  However, the evidence of record confirms the applicant was REFRAD by reason of temporary disability, on 27 January 2008, and placed on the TDRL with a 40% disability rating on 28 January 2008.  While he is on the TDRL, he is subject to periodic reexamination and PEB reviews that could result in a change in his disability status.  

2.  The applicant is advised that once a final determination has been made on his disability status by proper medical authorities through the PEB process, he will be presented his options for permanent retirement, restoration to duty, or separation with severance pay.  Because the applicant's medical condition was incurred in the line of duty (otherwise he would not have been eligible for processing through the PDES), he will not be entitled to non-regular retired pay at age 60 (15 Year Letter) as he was mistakenly informed in the NGB advisory opinion.

3.  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 this requirement.

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.




      _______ _   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)                                         AR20090004126



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ABCMR Record of Proceedings (cont)                                         AR20090004126


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