IN THE CASE OF:	

		BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090014650 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that she was retired by reason of permanent disability.

2.  The applicant states that she went through a Physical Evaluation Board (PEB) with 19 years and 1 month of active Federal service and the board decided that she was not fit to complete 11 more months of active duty because of a neck injury that she had sustained.  She goes on to state that she did not agree with the decision because although she was serving in a tactical military occupational specialty, she had spent her first 4 years as a personnel records specialist and could have fulfilled her 20-year obligation on active duty.  She continues by stating that she was supposed to be discharged with severance pay but was informed by the Adjutant General’s office that she could retire under the Temporary Early Retirement Authority (TERA).  She also states that a discharge with severance pay is inconsistent and that an alternate option of early retirement should not have nullified the original reason for her being separated, which was physical disabilities. 

3.  The applicant provides:

* Her TERA approval
* Her PEB proceedings
* Her retirement orders with amendments and
* A copy of her DD Form 214

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 enlisted in the Regular Army on 20 January 1982 and served until she was honorably discharged in the pay grade of E-5 on 9 June 1989, due to pregnancy. 

3.  She again enlisted in the Regular Army on 11 April 1990 and served through a series of continuous reenlistments.  She was promoted to the pay grade of E-6 on 1 April 1992.

4.  On 2 July 2001, while the applicant was stationed at Fort Bliss, Texas, a PEB convened at Fort Lewis, Washington which found that the applicant was physically unit and recommended a combined disability rating of 10%.  The PEB recommended that she be separated with severance pay.  The applicant did not concur with the findings and recommendation and demanded a formal hearing with personal appearance and representation by counsel.

5.  The applicant did not provide and the available records do not contain the outcome of that hearing.  However, the applicant provides documents showing that she applied for voluntary early retirement in lieu of separation under the TERA and her request was approved by the Human Resources Command – Alexandria on 4 October 2001.

6.  Accordingly, she was honorably released from active duty on 31 December 2001 and was transferred to the Retired List effective 1 January 2002 due to Voluntary Early Retirement.  She had served 19 years, 2 months, and 10 days of total active service

7.  A review of the available records fails to show that she was ever deemed to be at least 30% disabled.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  A disability rating of 30% or higher as determined by the Physical Disability Evaluation System (PDES) entitles a Soldier to retirement benefits.  Personnel who receive less than a 30% disability rating are afforded severance pay if eligible.

9.  In 1993, Congress approved the use of a Temporary Early Retirement Authority (TERA) as a drawdown tool.  This measure allowed the Army to offer early retirement to certain soldiers who have at least 15, but not yet 20 years of service under the Voluntary Early Retirement Program (VERP).  Early retirement is not an entitlement and the Army offered it only to selected soldiers in excess grades and skills.  The original authority for use of TERA expired at the end of Fiscal Year 1999, but was extended to 31 December 2001.  The authority for TERA is codified in Title 10, U.S. Code, section 1293.  The Army did not utilize this provision of the law during fiscal year 2001 except for members who were recommended for discharge due to physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided sufficient evidence to show that she was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

2.  It appears based on the available evidence that the applicant did not want to accept severance pay for her service and elected instead to apply for early retirement under the TERA.  Her request was approved and based on her personal choice, she was retired under the voluntary early retirement program on the last day the program was available.

3.  The applicant’s contention that she should have been retired by reason of permanent disability has been noted and found to lack merit.  She was not found to be at least 30% disabled under the PDES and therefore was not entitled to be retired by reason of permanent disability.  

4.  Therefore, in the absence of evidence to show that she was not properly evaluated under the PDES, there appears to be no basis to grant her request.


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)                                         AR20090014650





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ABCMR Record of Proceedings (cont)                                         AR20090014650



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