IN THE CASE OF:	  

		BOARD DATE:	       8 OCTOBER 2009

		DOCKET NUMBER:  AR20090006028 


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 correction of his records to show he elected to be transferred to the Retired Reserve with entitlement to retired pay at age 60 instead of being discharged with entitlement to severance pay.

2.  The applicant states that when he was discharged in September 2005, he was not counseled properly regarding the choice between severance pay and non-regular retirement.  He finds it unjust that the Department of Veterans Affairs (DVA) is garnishing his severance pay but he is not allowed to retire at age 60.  He believes that there are other Soldiers in a similar situation and that the rules are not fair.

3.  The applicant also states that when he was medically evacuated to Fort Riley, KS, he had surgery on his left shoulder.  When his surgery was completed, he spent several months in physical therapy and that during physical therapy he tore the repair that was completed.  He was told by his physician at the time that once he was discharged, he could have the DVA look at it.  He also adds that in April 2005, he had his left knee scoped and there were some fragments of bone found in his knee and he knew that at one point in his life, he would need a knee replacement completed.  He further adds that he also complained of left shoulder pain. 

4.  The applicant further states that he had been diagnosed with sleep apnea, hypertension, and intentional tremors, which were determined to be paralysis of the lower radicular nerve group.  He also complained of headaches and mood swings and had one doctor refer him for a psychiatric evaluation for post traumatic stress disorder (PTSD).  He also underwent a magnetic resonance imaging (MRI) on both shoulders and the MRI confirmed that he had torn rotator cuffs.  He also states that since his discharge, he has found out that his headaches were caused by mortar and rocket explosions in Iraq and that he has MTBI (Mild Traumatic Brain Injury). 

5.  The applicant concludes that he is troubled with the Government’s actions in that the Army gave him severance pay but did not allow him to retire and the DVA is recouping the severance pay. 

6.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 September 2005; a copy of a sample memorandum for transfer to an inactive status or discharge with severance pay; and a copy of his DVA compensation computer printout in support of his request.

7.  On 21 September 2009, the applicant provided a copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 29 July 2005, and a self-authored letter in which he restates his contention that when he was discharged in September 2005 it was not explained to him that his severance pay would be collected if he were in receipt of DVA compensation for the same injuries and that he is not alone in this situation. 

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.  The applicant’s records show he was born on 26 October 1958 and initially enlisted in the Regular Army on 27 July 1977.  He held military occupational specialty (MOS) 12B (Combat Engineer) and executed a 6-year reenlistment on 28 March 1980.  He was honorably discharged in the rank/grade of sergeant/E-5 on 4 June 1985. 


3.  The applicant’s records also show he enlisted in the U.S. Army Reserve (USAR) for a period of 3 years on 10 February 1987.  He also executed several extensions and/or reenlistments in the USAR including a 1-month extension on 5 May 1987, a 6-year reenlistment on 16 October 1989, a 5-year reenlistment on 26 August 1993, and a 6-year reenlistment on 11 March 1995.

4.  The applicant’s records further show he executed an enlistment of unknown duration in the Missouri Army National Guard (MOARNG) on 13 October 1995.  He served through several extensions in the MOARNG and attained the rank/grade of sergeant first class (SFC)/E-7.

5.  On 3 January 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 20 February 2004 to 12 October 2004.  

6.  In October 2004, the applicant was medically evacuated from Iraq through Landstuhl, Germany, to Irwin Army Community Hospital (IACH) at Fort Riley, KS, for concerns about pain in his right shoulder.  He also had developed progressive tremors that were later diagnosed as intention tremors, and significant sleep disturbance and left knee pain.  He subsequently underwent a complete physical evaluation.  His Narrative Summary (NARSUM), dictated on 1 June 2005, shows he was diagnosed with the medically unacceptable conditions of right shoulder tear and severe acromioclavicular arthropathy with limited range of motion; left knee internal derangement, severe arthropathy, and limited range of motion; sleep apnea, and intention tremors.  The attending physician recommended the applicant be referred to the Physical Disability Evaluation System (PDES).

7.  On 29 June 2005, a Medical Evaluation Board (MEBD) convened at IACH, Fort Riley, KS, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant was diagnosed as having the non-medically acceptable conditions of right shoulder supraspinatus tear and severe acromioclavicular arthropathy with limited range of motion; left knee internal derangement, severe arthropathy, and limited range of motion; sleep apnea; and intention tremors.  The MEBD recommended that he be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the MEBD’s findings and recommendation and indicated that he did not desire to continue on active duty. 

8.  On 29 July 2005, an informal PEB convened at Fort Lewis, WA, and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to chronic pain in the right shoulder and left knee since 1980 with recent re-injury.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10 percent disability rating for code 5003 (for both conditions of left shoulder pain and left knee pain shown on his NARSUM).  The PEB also considered his other conditions of sleep apnea and intention tremors and found them not to be unfitting and therefore they were not rated.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The PEB also noted the following:

	a.  the applicant’s disability was less than 30 percent and he had less than 20 years of active service.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) requires separation with severance pay which is computed by multiplying monthly basic pay times 2 times each year of Federal service; 

	b.  he was awarded less than 30 percent disability rating and had at least 20 years qualifying years for non-regular retirement.  By law, he had the option of accepting his disability severance pay and forfeiting his Reserve retirement or he could chose to be placed in an inactive Reserve status and receive Reserve retired pay at age 60 by forfeiting his disability severance pay.  Chapter 61, Title 10, U.S. Code, section 1209 specifies that a member may not receive both disability benefits and retired pay for non-regular service.

9.  On 3 August 2005, the applicant concurred with the PEB’s finding and recommendation, waived his right to a formal hearing, and elected to receive the disability severance pay.  He and his counselor authenticated the DA Form 199 and placed their signatures in the appropriate places.  Additionally, the DA Form 199 shows the following entries:

I have informed the Soldier of the findings and recommendations of the Physical Evaluation Board and explained to him the result of the findings and recommendations and his legal rights pertaining thereto.  The Soldier has made the election(s) shown above

   Additionally, the applicant placed his initials next to a handwritten statement that states Soldier wants severance pay.  He does not want 20-year retirement. 

10.  On 1 September 2005, the applicant was honorably discharged in accordance with paragraph 4-24b(3) of Army Regulation 635-40 by reason of physical disability with entitlement to severance pay.  The DD Form 214 he was issued shows he was awarded $95,760.00 in severance pay.  


11.  The applicant’s complete medical records are not available for review with this case; however, his NARSUM and MEBD did not list his PTSD, MTBI, torn rotator cuffs, or hypertension.  Additionally, there is no indication that if these conditions were listed, they would have been medically unfitting. 

12.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

13.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.  

14.  Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

15.  Title 10, USC, section 1209 states that any member of the armed forces who has at least 20 years of service (for a reserve retirement) and who would be qualified for disability retirement but for the fact that his disability is less than 30 percent may elect, instead of being separated, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive (reserve) retired pay upon becoming 60 years of age.  

16.  Title 38, USC, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. 

17.  Title 38, USC, section 5304 states that, except to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, regular, or reserve retirement pay shall be made concurrently to any person based on such person’s own service.  

18.  Title 10, USC, section 1174, states that a member who has received separation pay under this section, or severance pay or readjustment pay under any other provision of law, based on service in the armed forces shall not be deprived, by reason of his receipt of such separation pay, severance pay, or readjustment pay, of any disability compensation to which he is entitled under the laws administered by the Department of Veterans Affairs, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay, severance pay, and readjustment pay received, less the amount of Federal income tax withheld from such pay (such withholding being at the flat withholding rate for Federal income tax withholding, as in effect pursuant to regulations prescribed under chapter 24 of the Internal Revenue Code of 1986). Notwithstanding the preceding sentence, no deduction may be made from disability compensation for the amount of any separation pay, severance pay, or readjustment pay received because of an earlier discharge or release from a period of active duty if the disability which is the basis for that disability compensation was incurred or aggravated during a later period of active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he elected to be transferred to the Retired Reserve with entitlement to retired pay at age 60 instead of being discharged with entitlement to severance pay.

2.  The evidence of record shows that the applicant underwent a thorough medical evaluation that resulted in a diagnosis of the medically unacceptable conditions of right shoulder tear, left knee internal derangement, sleep apnea, and intention tremors.  He was not diagnosed as having PTSD, MTBI, or any other condition.  He subsequently underwent an MEBD which recommended his referral to a PEB.  He agreed with this recommendation and elected not remain on active duty.  

3.  The PEB considered all four conditions listed by the MEBD.  The PEB found his conditions of sleep apnea and intention tremors not to be unfitting and therefore they were not rated.  The PEB further determined that his shoulder and knee pain prevented him from performing his duties.  The PEB thus determined that he was physically unfit for further military service and recommended his separation with entitlement to severance pay. 

4.  Since he was rated at less than 30 percent and since he had 20 or more qualifying years for non-regular retirement, he was given the option to be transferred to the Retired Reserve with entitlement to retired pay at age 60 or to be discharged with entitlement to severance pay.  He was counseled by his counselor who explained to him his legal rights and elected the severance pay. Contrary to his contention, he was not deprived of his retired pay.  By law, he could not receive both, severance pay and retired pay at age 60.  He made an election to receive the severance pay.  There is neither an error nor an injustice. 

5.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant him the requested relief. 

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.




      _______ _   _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)                                         AR20090006028



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ABCMR Record of Proceedings (cont)                                         AR20090006028



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