IN THE CASE OF:	

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090006232 


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, that his total and complete separation and severance from the Army due to disability be corrected to transfer to the U.S Army Reserve (USAR) Control Group (Retired).  In addition, he requests relief from the recoupment of disability severance pay from his retired pay because the Department of Veterans Affairs (DVA) is currently recouping his military severance pay from his disability compensation.

2.  The applicant states, in effect, that he was notified he was eligible for retired pay at age 60 upon receipt of his 20-Year Letter on 25 October 1991.  This letter stated that he was irrevocably guaranteed eligibility for retired pay at age 60 unless an error was made either through fraud or misrepresentation on his part.

3.  He states that while in an Active Guard Reserve (AGR) status, he was medically disqualified for retention on active duty and he was separated with severance pay.  He states that at no time during the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings or subsequent separation processing was he asked if he was qualified for retirement under the Reserve Component (RC) nonregular retirement standards.

4.  The applicant states he was not informed that his acceptance of disability severance pay would nullify his eligibility to receive his earned retired pay that was "guaranteed and irrevocable."  Therefore, his medical separation was unjustly accomplished by all elements of the Army in contravention of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 
and law.  He states that Title 10, U.S. Code, section 1209 provides for the option to transfer a Soldier to the Retired Reserve and maintain eligibility for retired pay at age 60 under the provisions of Title 10, U.S. Code, section 12735.

5.  He continues his statement by saying he was incorrectly and unjustly processed for separation under Title 10, U.S. Code, section 1203 which provides for separation with severance pay with less than 20 years of service.  He states it is apparent that no elements of the Army involved with his medical separation were aware of the existence of his 20-Year Letter and his eligibility for retired pay at age 60.

6.  Further, he states that throughout the past 16 years he was led to believe he would be able to receive retired pay because he consistently received his DARP Form 249-2-E (Chronological Record of Retirement Points) from the Army retirement accounting system.  He states he was unjustly encouraged by the Army to believe that he would receive retired pay.  Upon application for retired pay six months before his 60th birthday, he was told, "by accepting the severance pay [he had] severed all ties with the military."

7.  He concludes by stating, in effect, that when his record is corrected to show he is eligible for retired pay, the severance pay or his VA disability compensation should not offset his retired pay.  He states he was incorrectly and illegally processed by Army officials and treated unlawfully when he was allowed to be separated in 1992 instead of correctly being transferred to the Retired Reserve.

8.  The applicant provides the following documents in support of his application:

	a.  a letter from the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, dated 25 October 1991, notifying the applicant of his eligibility for retired pay at age 60;

	b.  a copy of his MEB proceedings, dated 10 June 1992;

	c.  a copy of his PEB proceedings, dated 5 August 1992;

	d.  a copy of his response to the PEB proceedings, dated 19 August 1992;

	e.  Orders D209-13, issued by U.S. Total Army Personnel Command (USTAPC), Alexandria, VA, dated 23 October 1992;

	f.  Orders D209-13 identified as a "Corrected Copy" changing his discharge date from 9 November 1992 to 23 December 1992;

	g.  Orders 352-00220, issued by Headquarters, Fort McPherson, GA, dated 17 December 1992, releasing him from attachment to Headquarters, Second Army, Fort Gillem, GA and attaching him to the U.S. Army Transition Point, Fort McPherson;

	h.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 December 1992;

	i.  a copy of his DFASNN Form 27-190-R (Separation Pay Worksheet), prepared on 29 December 1992 and audited on 30 December 1992;

	j.  a copy of two checks issued by the Fort McPherson Finance Office, both dated 30 December 1992; and a copy of his DD Form 1173 (Priv) (U.S. Uniformed Services Identification and Privilege Card);

	k.  copies of his DARP Forms 249-2 E, dated 5 June 1992, 4 June 1993, 17 March 2000, 4 January 2002, 14 March 2003, 23 October 2003, 18 March 2005, 18 March 2006, and 1 March 2007;

	l.  two self-authored letters to ARPERCEN requesting clarification and assistance, dated 17 January 1994 and 8 December 2001;

	m.  three memoranda, dated 7 December 2001, 30 September 2003, and 24 March 2006 requesting correction of his DARP Forms 249-2-E and that his name be changed on his official documents;

	n.  an ARPC Form 3699 (Information Paper - Commissary Privileges) and a DD From 2529 (U.S. Forces Commissary Privilege Card) with an expiration date of 31 December 2003;

	o.  copies of faxes sent to a representative at ARPERCEN, dated 14 May 2002 and 4 June 2002, requesting assistance from the ARPERCEN Inspector General's Office;

	p.  a copy of his DD Form 108 (Application for Retired Pay Benefits), DD Form 2625 (Data for Retired Payment of Retired Personnel), and Standard Form 1199A (Direct Deposit Sign-up Form), all of which were part of his retirement application;

	q.  a postcard from the U.S. Army Human Resources Command (USAHRC), St. Louis, stamped 17 April 2007 addressed to "LTC D----- M. W---" stating his retirement application was received and that it would be processed;

	r.  a letter from the Chief, Transition and Separations Branch, USAHRC-St. Louis, dated 27 October 2008, acknowledging that although a retirement application was sent to the applicant, his acceptance of severance pay "severed all ties with the military" and that any benefits to which he may be entitled as a result of his military service would come under the jurisdiction of the Department of Veterans Affairs (VA) and the Social Security Administration (SSA); and

	s.  pertinent legal documents affecting his name change. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's status be changed to retirement. 

2.  Counsel states that all appropriate developments, to include conducting any necessary VA examination(s), be completed as soon as possible.

3.  Counsel does not provide any additional documents in support of the application. 

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.  In the processing of this case, a staff member of the Army Board for Correction of Military Records (ABCMR) contacted the applicant stating that the ABCMR is empowered to correct errors or injustices in military records and that the ABCMR has no authority over decisions made by the Defense Finance and Accounting Service (DFAS) concerning payment or recoupment of monies based on a correction of records made by the Board.  The applicant responded on 13 January “2009” (i.e., 2010) stating he is now aware that any waiver or remission of debt must be independently processed through DFAS.  In his letter to the ABCMR, he clarified his request for correction of his military records to show that he waived his disability severance pay so he would be entitled to Reserve retired pay at age 60.  Therefore, his initial request to waive recoupment of his disability severance pay will not be further considered by the ABCMR. 

3.  With prior enlisted service in the Regular Army (RA), the applicant successfully completed Officer Candidate School (OCS) and he was commissioned in the USAR on 13 March 1970 as an Infantryman.  With prior active duty and reserve service, he entered active duty on 5 November 1979 in the AGR program.  He had 3 years, 9 months, and 22 days of prior active service and 7 years, 5 months, and 13 days of prior inactive service.

4.  The applicant's Areas of Concentration (AOC) were 54A (Operations, Plans and Training) and 42A (Adjutant General Corps).

5.  The applicant was assigned to Headquarters, Second U.S. Army as the AGR/USAR Training Officer on 5 July 1989.

6.  By memorandum, on 25 October 1991 the applicant was notified he was eligible for retired pay at age 60.  The memorandum states that he would be eligible for retired pay under the provisions of Title 10, U.S. Code, chapter 67 and that his retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years creditable service performed unless it resulted directly from fraud or misrepresentation on the part of the applicant. 

7.  On 23 January 1992, the applicant personally appeared before a Military Occupational Specialty Medical Retention Board (MMRB) at Fort McPherson.  The MMRB found that his medical records reflected a condition that hindered his current duty performance and indicated he was not eligible for worldwide deployment.  The board directed that he appear before an MEB.

8.  On 26 April 1992, the applicant received a physical evaluation in preparation for his MEB.  The narrative summary outlined the fact that the applicant was injured during a parachute-landing fall in 1987.  The injuries were to his lower back and right groin with right lower extremity pain.  Conservative management of his condition resulted in the resolution of his pain.  In January 1988, he developed marked pain noted when sitting and standing.  The diagnosis was L4 spondylolysis with grade 1 spondylolisthesis.  He had surgery to fuse his L4-L5 discs resulting in resolving his groin and lower extremity pain, but not his lower back pain.  As a result, he was given a permanent profile and he was reclassified into another AOC by an MMRB.

9.  By endorsement, dated 28 May 1992, the applicant's supervisor stated that his mission performance had been extremely limited during his three-year assignment.  The supervisor stated periods of prolonged sitting, standing, or walking and abrupt bending or lifting visibly caused distress and resulted in follow-on loss of mental and physical endurance.  The applicant missed two days per week or several days each month due to degraded mental and physical condition because of pain associated with his injury.  The applicant's last recorded Army Physical Fitness Test was in June 1987.  He could not perform instructor, briefer, or trainer duties due to prolonged standing requirements.  He could not participate in leading or participating in organized training, or supervising, observing, or participating in military parades or award ceremonies.  He was not able to wear his individual rucksack and military gear nor march or ride in military vehicles for prolonged periods of time.  The supervisor concluded by stating that the applicant unequivocally could not adequately perform in either wartime or peacetime tasks required of his rank and specialties.

10.  On 10 June 1992, an MEB was convened.  The MEB determined that the applicant was medically disqualified due to chronic low back pain as a result of his spinal fusion and instrumentation, and early cervical osteoarthritis.

11.  On 29 June 1992, the applicant was briefed and stated he understood his rights to continue on active duty under the provisions of Army Regulation 635-40, chapter 6 (Continuance of Disabled Personnel on Active Duty).  He signed a statement declining continuance on active duty.

12.  On 5 August 1992, a PEB was convened and it determined that the applicant was physically unfit due to low back pain without neuropathy because of disc fusion and instrumentation, with essentially normal motion.  The PEB determined that his condition was 10 percent disabling under the VA Schedule for Rating Disability (VASRD).  The PEB recommended discharge with severance pay.

13.  On 19 August 1992, the applicant was counseled and informed of the PEB's findings and recommendation.  To document the counseling sessions, a DA Form 5893 (PEBLO [PEB Liaison Officer] Counseling Checklist/Statement) was used by the PEBLO and applicant.  The PEBLO described the course of disability processing through the PEB, counseled the applicant on election actions to include guidelines for submitting a rebuttal, time limits, and the impact of a timely rebuttal.   He was advised of his legal rights pertaining to the PEB to include the criteria and procedures for requesting continuance on active duty or in the Active Reserve.  He concurred with the PEB's findings and recommendation and he waived a formal hearing.  He and the counselor authenticated the counseling statement.   

14.  On 23 October 1992, the U.S. Army Physical Disability Agency (USAPDA) approved the findings and recommendation of the PEB and directed that the applicant be discharged with severance pay.

15.  The USTAPC issued Orders D209-13, dated 23 October 1992, discharging the applicant from the Reserve of the Army effective 9 November 1992.  The orders authorized disability severance pay in the grade of lieutenant colonel based on 16 years, 10 months, and 22 days of active service computed under Title 10, U.S. Code, Section 1208.  His percentage of disability was 10 percent.

16.  A "Corrected Copy" of Orders D209-13 was published changing the effective date of the applicant's separation from 9 November 1992 to 23 December 1992, changing his component from Army National Guard to USAR, and adjusting his computation of active service from 16 years, 10 months, and 22 days to 17 years and 7 days.  In addition, the instructions stated that this order terminated all Reserve of the Army and Army of the United States appointments.

17.  Accordingly, the applicant was honorably discharged on 23 December 1992 by reason of physical disability, rated 10 percent disabled, with $107,323.20 in severance pay.

18.  The applicant applied to the ABCMR requesting that his 10 percent disability rating for chronic back pain be corrected to a 30 percent rating with the additional 20 percent disability ratings being given for depression associated with chronic pain, tinnitus, and varicose veins.  On 15 June 2000, the ABCMR denied the applicant's request because the MMRB, MEB, and PEB all showed that he was medically disqualified and physically unfit to perform his military occupational duties and those of a senior field grade officer solely due to lower back pain.  The three aforementioned conditions were not medically disqualifying or physically unfitting. 

19.  The applicant's date of birth was 2 April 1949 and he reached his 60th year on 2 April 2009. 

20.  Title 10, U.S. Code, section 1209 authorizes the transfer to the inactive status list instead of separation for any member of the armed force who has at least 20 years of service computed under section 12732 of this title, and who would be qualified for retirement under this chapter but for the fact that his disability is less than 30 percent under the standard schedule of rating disability used by the DVA at the time of the determination, may elect, instead of being separated under this chapter, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive retired pay under section 12739 of this title upon becoming 60 years of age.
21.  Title 10, U.S. Code, section 12735 authorizes a member of the armed forces who would be eligible for retired pay under this chapter but for the fact that the member is under 60 years of age to be transferred, at his request and by direction of the Secretary concerned, to such inactive status list as may be established for members of his armed force, other than members of a regular component.

22.  Army Regulation 140-10 (Assignments, Attachments, Detail, and Transfers) provides, in pertinent part, that eligible Soldiers must request a transfer to the Retired Reserve.  No Soldier may be transferred to the Retired Reserve without his written consent. 

23.  Army Regulation 635-40 provides for the evaluation for physical fitness of Soldiers who may be unfit to perform the military duties of his or her office, grade, rank, or rating because of a physical disability.  Requirements are such that a MEBD is 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

24.  Army Regulation 635–40 provides that the PEBLO will work at military medical treatment centers or hospitals.  A PEBLO is assigned to each Soldier who is being medically evaluated for retention and continuance on active duty or the Reserve Component of the U.S. Army.  The PEBLO's primary objective is to protect the legal rights and interests of the Soldier throughout the medical evaluation process.  A Soldier will be individually counseled and the counseling sessions will be documented using DA Form 5893.  The Soldier is counseled by the PEBLO after the MEBD convenes and makes its recommendation and if referred to the PEB, after the PEB convenes and makes its recommendation to the USAPDA.  As part of the formal counseling, the PEBLO counsels the Soldier on compensation and pay related benefits.  

25.  Army Regulation 635-40 requires that when a Soldier has a rating of less than 30 percent and has at least 20 qualifying years for retirement for non-regular service the DA Form 199 (Physical Evaluation Board [PEB] Proceedings) should have the entry:  "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or you may request transfer to the Retired Reserve and receive retired pay at age 60.  According to sections 1209 and 1213, Title 10, U.S. Code, you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve."

26.  Army Regulation 138-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Components Soldiers.  It provides, in pertinent part, that for a Soldier or a former member of the RC to be eligible for retired pay, he need not have a military status at the time of application, but he must have attained age 60, completed a minimum of 20 years of qualifying service, and not have elected to receive disability severance pay in lieu of retired pay at age 60.

27.  Army Regulation 135-180 provides, in pertinent part, that area commanders in coordination with USAHRC, St. Louis will furnish a DA Form 5016 (Chronological Record of Military Service) and retirement point credits to its members on an annual basis or when requested.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the handling of his separation was erroneous, improper, illegal, and unjust.  Based on this belief, he contends his record should be corrected to show he waived disability severance pay and that he voluntary requested a transfer to the Retired Reserve upon his separation from active duty so as to be eligible for retired pay at age 60. 

2.  The evidence of record shows that the applicant was a member of the Reserve component and that he had received his 20-Year Letter prior to the PEB showing he was eligible for retired pay upon application at age 60.  

3.  For unknown reasons, the applicant's DD Form 199 did not contain the required statement:  "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or you may request transfer to the Retired Reserve and receive retired pay at age 60.  According to sections 1209 and 1213, Title 10, U.S. Code, you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve."

4.  Although it would be reasonable to presume that a lieutenant colonel in the Adjutant General Corps would know that a discharge with severance pay would preclude him from receiving retired pay for nonregular service, the Army was in violation of its own regulations by not entering the aforementioned statement on his DD Form 199.  

5.  Therefore, it would be appropriate to correct the applicant's record to show that his DD Form 199 contained the statement, "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or you may request transfer to the Retired Reserve and receive retired pay at age 60.  According to sections 1209 and 1213, Title 10, U.S. Code, you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve."  

6.  As a result of this correction to his DD Form 199, the applicant's records should be further corrected to show that he declined disability severance pay and that he elected transfer to the Retired Reserve effective 23 December 1992.

7.  With this correction, the applicant is a member of the Retired Reserve.  Therefore, his record should also be corrected to show that he made timely application for retired pay at age 60, and on 2 April 2009, he was entitled to retired pay for nonregular service.

8.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

____X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  adding this statement to his DA Form 199, dated 19 August 1992: 

You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or you may request transfer to the Retired Reserve and receive retired pay at age 60.  According to sections 1209 and 1213, Title 10, U.S. Code, you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve.

   b.  showing on his DD Form 199, dated 19 August 1992, that he elected transfer to the Retired Reserve; 

   c.  publishing an order transferring the applicant to the Retired Reserve effective 23 December 1992; and

   d.  showing the applicant made timely application for retired pay for nonregular service on 2 April 2009.




      ___________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)                                         AR20090006232



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ABCMR Record of Proceedings (cont)                                         AR20090006232



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