IN THE CASE OF:
BOARD DATE: 6 October 2009
DOCKET NUMBER: AR20090004941
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, reversal of the revocation of his retired pay.
2. The applicant states, in effect, he would like to appeal the decision that removed him from the Retired List because he was receiving medical disability severance pay. He believes this decision was unjust for the following reasons: his severance pay has been repaid from the disability compensation he received from the Department of Veterans Affairs (DVA) for the past 12 years; and most people receiving severance pay have not completed more than 20 years of service. The DD Form 214 (Certificate of Release or Discharge from Active Duty) that he was issued indicates in item 28 (narrative reason for separation) disability-severance pay, and he was still placed on the Retired List.
3. The applicant provides the following documents in support of his application: self-authored letter, dated 8 March 2009; United States Army Reserve Personnel Center (ARPERCEN) letter, dated 8 July 1997; DVA letter, dated
6 August 1998; Defense Finance and Accounting Service (DFAS) letters, dated October through December 2008; United States Army Human Resources Command-St. Louis (HRC-St. Louis) letter and orders, dated 12 February 2009; and DD Form 214, dated 22 September 1997.
CONSIDERATION OF EVIDENCE:
1. On 25 June 1984, while serving in the United States Army Reserve (USAR), the applicant entered active duty in an Active Guard Reserve (AGR) status.
2. On 8 July 1997, the applicant was notified in an ARPERCEN memorandum that he had completed the required years of service necessary to be eligible to receive retired pay at age 60 upon application.
3. On 22 September 1997, the applicant was honorably discharged, in the rank of sergeant first class, under the provisions of Army Regulation 635-40, by reason of disability with severance pay. The DD Form 214 he was issued at the time shows he completed a total of 13 years, 2 months, and 28 days of active military service and a total of 19 years, 8 months, and 2 days of inactive military service.
4. A DVA letter, dated 6 August 1998, shows the applicant was awarded monthly disability compensation in the amount of $391.00, on 1 October 1997, which was increased to $399.00, on 1 December 1997. This DVA letter also indicates the applicant received $71,000.00 in disability severance pay and that his DVA compensation would be withheld until the full amount of severance pay was recovered.
5. An undated DFAS letter, believed to be issued in 2004, welcomed the applicant to the retired rolls. A 21 October 2005 DFAS letter informed the applicant of how disability compensation would be paid in the future, and a
12 December 2008 DFAS letter informed the applicant that a portion of his retired pay would be collected until the total $71,000.00 in severance pay was recouped.
6. On 12 February 2009, the applicant was informed in a letter from the Transitions and Separation Branch, HRC-St. Louis, that a review of his records revealed he received disability severance payment in the amount of $71,000.00 in September 1997, therefore, he was not entitled to retirement benefits. Orders P11-489268 were published revoking the 1 November 2004 orders that originally placed the applicant on the Retired List. The authority for this revocation was Title 10 of the United States Code, Section 12731.
7. Title 10 of the United States Code, Section 1213 (10 USC 1213) provides guidance on the effect of separation on benefits and claims. It states, in pertinent part, that unless a person who has received disability severance pay again becomes a member of an armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service, he is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation, under any law administered by one of those services or for it by another of those services.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that it was unjust for him to be denied non-regular retirement and to receive retired pay at age 60 was carefully considered. However, there is insufficient evidence to support this claim.
2. Under the provisions of 10 USC 1213, unless a person who has received disability severance pay again becomes a member of an armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service, he is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation, under any law administered by one of those services or for it by another of those services. As a result, given the applicant received $71,000.00 of disability severance pay upon his discharge from active duty on 22 September 1997, he is not eligible to receive non-regular retirement benefits and/or retired pay at age 60.
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) AR20090004941
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