IN THE CASE OF:
BOARD DATE: 12 November 2009
DOCKET NUMBER: AR20090017255
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 he be issued a Notification for Eligibility for Nonregular Retired Pay at Age 60 (15-year letter).
2. The applicant states that he was assigned to the 972nd Combat Engineer Battalion, but this unit was disbanded during the downsizing. He was then transferred to the 337th Combat Support Hospital where the processing of his medical disqualification was started but this unit was also disbanded.
3. The applicant did not provide any additional documentary evidence in support of his request.
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 7 October 1940 and enlisted in the Regular Army (RA) for a period of 3 years on 25 March 1958. He was released from active duty on 4 March 1961 and transferred to the U.S. Army Reserve (USAR) Control Group for completion of his Reserve obligation. He then enlisted again in the RA for a period of 3 years on 9 July 1962 and was released from active duty on 8 July 1965.
3. After a break in service, the applicant enlisted in the USAR on 5 April 1973 and subsequently served through several extensions of his enlistment. He held military occupational specialty 63B (Wheeled Vehicle Mechanic), was assigned to the 972nd Engineer Battalion, Fort Benjamin Harrison, IN, and attained the rank/grade of specialist (SPC)/E-4.
4. On 18 March 1993, while attending annual training, the applicant injured himself when a mobile kitchen trailer tipped back with him on it. He was subsequently treated at Hawley Army Hospital, Fort Benjamin Harrison, IN.
5. On 20 March 1996, the applicant complained of low back pain with radiation to both legs after trying to run. He subsequently underwent a thorough physical examination and was diagnosed as having degenerative disc disease of the cervical spine and degenerative disc disease of the lumbosacral spine.
6. On 3 June 1996, the applicant was issued a permanent physical profile for lumbar and cervical degenerative disc disease.
7. On 3 June 1996, a medical evaluation board (MEBD) convened at the 337th Combat Support Hospital, Indianapolis, IN, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD diagnosed the applicant with the medically unacceptable conditions of degenerative disc disease of the cervical spine and degenerative disc disease of the lumbosacral spine. The MEBD recommended that he be referred to a physical evaluation board (PEB). The applicant concurred with the MEBD's findings and recommendation and indicated that he did not desire to continue on active duty.
8. On 4 September 1996, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to degenerative joint disease, cervical and lumbosacral spine. The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and was granted a zero-percent disability rating for code 5003. The PEB recommended the applicant be separated without disability benefits. The PEB also noted that there was compelling evidence to support a finding that the current condition was not the proximate result of performing duty and that there was no causal relationship between the applicant's military duties and his condition.
9. On 23 September 1996, the applicant elected not to concur with the PEB's finding and recommendation and demanded a formal hearing with personal appearance. However, on 9 October 1996, he concurred with the PEB's findings and recommendations and waived his right to formal hearing.
10. On 5 November 1996, the U.S. Total Army Personnel Command (PERSCOM), Alexandria, VA, issued Orders D226-2 ordering the applicant's discharge from the USAR effective 9 December 1996 with no entitlement to severance pay.
11. On 7 November 1996, having completed at least 15 years but less than 20 years of qualifying service for nonregular retirement, the applicant submitted a DA Form 4187 (Personnel Action) requesting to be transferred to the Retired Reserve in lieu of discharge due to medical disqualification.
12. On 14 November 1996, PERSCOM-Alexandria, VA, revoked the applicant's discharge orders and on 20 November 1996 issued Orders 96-325-074 directing the applicant's transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) effective 13 September 2005 by reason of being medically disqualified.
13 The applicant's U.S. Army Reserve Personnel Center (ARPC) Form 249-2-E (Chronological Statement of Retirement points), dated 5 November 2009, shows he completed 17 years, 3 months, and 10 days of qualifying service toward nonregular retirement. A breakdown of his ARPC Form 249-2-E is as follows:
From
To
Status
Qualifying For Retirement
Total points
19960110
19961120
USAR
00 00 00
13
19950110
19960109
USAR
00 00 00
13
19940110
19950109
USAR
01 00 00
59
19930110
19940109
USAR
01 00 00
70
19920110
19930109
USAR
01 00 00
66
19910110
19920109
USAR
01 00 00
75
19900110
19910109
USAR
01 00 00
75
19890110?
19900109
USAR
01 00 00
55
19880110
19890109
USAR
01 00 00
75
?
?
?
?
?
Total
17 03 10
3131
14. The applicant turned 60 years old on 7 October 2000. However, there is no indication that he is receiving retired pay.
15. Title 10, U.S. Code, section 12731, provides the legal age and service requirements for Reserve nonregular retirement. It states that a person is entitled upon application to retired pay if the person has attained the applicable eligibility age has performed at least 20 years of service computed under section 12732 of this title; is not entitled under any other provision of law to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve; and in the case of a person who completed the service requirements before 25 April 2005, performed the last 6 years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a Regular Component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before 5 October 1994, the number of years of such qualifying service under this paragraph shall be 8.
16. Title 10, U.S. Code, section 12731b, provides a special rule for members with physical disabilities not incurred in the line of duty. It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years, of qualifying service for retirement purposes.
17. Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as an RC Soldier. The requirement to serve the last 8 years in an RC was later amended to the last 6 years on 30 September 2002 and was reduced to zero years on 25 April 2005.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he should be issued a 15-year letter in order to be eligible to receive nonregular retired pay at age 60.
2. By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement. However, a member of the Selected Reserve who is medically disqualified for continued service in an RC may be considered as having met the service requirement and may be issued a notification if the member completed at least 15 years, but less than 20 years, of qualifying service for non-regular retirement purposes.
3. The evidence of record in this case confirms the applicant completed a total of 17 years, 3 months, and 6 days of qualifying service toward nonregular retirement at the time he was transferred to the Retired Reserve due to being medically disqualified. It is noted that although he went to an MEBD/PEB the PEB determined that his disability was not the proximate result of performing duty; therefore, his disabilities were not incurred in the line of duty and he would have been eligible for a 15-year retirement.
4. The applicants records should be corrected to show he was placed on the Retired List in his retired rank/grade of SPC/E-4 effective 7 October 2000, the date he turned 60, with all back retired pay due effective this date.
5. 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 applicants 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 showing he completed more than 15 years, but less than 20 qualifying years, of service for nonregular retirement with at least the last 8 years served in a Reserve Component and showing he applied for retired pay to be effective 7 October 2000 (his 60th birthday) with entitlement to all back due retired pay effective on this date.
___________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) AR20090017255
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090017255
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130008426
Counsel requests correction of the applicant's records to show: * he was medically retired and placed on the Retired List at the rate of 50 percent (50%) effective 12 February 2007 * entitlement to back retired pay from the date of his transfer to the Retired Reserve to the present 2. The applicant should be retired. Counsel provides: * DA Form 199 (PEB Proceedings) * Request for Transfer to the Retired Reserve in lieu of Disability Processing * Transfer to an Inactive Status Discharge...
ARMY | BCMR | CY2012 | 20120015742
The PEB determined that the applicant was unfit and recommended that he be given a combined disability rating of 20% and separated with severance pay. In the processing of this case a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) which opines, in effect, that the PEBs determination at the time was correct based on the available evidence; however, based on the additional evidence provided by the applicant it appears the applicants cervical...
ARMY | BCMR | CY2009 | 20090013430
The profiling officer and approving authority stated that the applicant required a Medical Evaluation Board (MEBD)/Physical Evaluation Board (PEB). On 21 August 2008, the initial physician directed MEBD shows that after consideration of all clinical records, laboratory findings, and physical evaluations it found the following medical conditions/defects: cervical spine pain, low back pain, and bilateral planter fasciitis. The PEB determined that the applicants disabling conditions were...
ARMY | BCMR | CY2012 | 20120008734
The evidence of record does not support the applicant's request for correction of his record to show he received a medical retirement, nor does it support his request for correction of item 9 of his final DD Form 214 to show he retired with more than 20 years of service. The applicant states the PEB failed to consider the physical profiles he received during his service; however, having had a temporary or permanent physical profile is not evidence of an unfitting condition. The record...
ARMY | BCMR | CY2009 | 20090002377
The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. There is no evidence in the applicant's records and the applicant did not submit any evidence that shows his injury led to a physical profile or limited duty, or that his injury would have warranted his referral to the physical disability evaluation system. The Army must find that a Soldier...
ARMY | BCMR | CY2009 | 20090012972
He states he had over 19 years of active and reserve service at the time of his separation. This same form shows that the applicant had 7 years, 3 months, and 26 days of qualifying service for regular retirement based on his two active duty U.S. Air Force enlistment periods. Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.
ARMY | BCMR | CY2012 | 20120014768
On 19 March 2012, a TDRL PEB convened and found his condition continued since being placed on the TDRL. The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving. CRSC determinations require evidence of a direct, causal relationship to the military retirees VA rated disabilities to war or the simulation of war.
ARMY | BCMR | CY2008 | 20080012899
The advisory opinion recommended that the applicants military records should be changed to reflect that he was found unfit and placed on the Temporary Disability Retired List (TDRL) on 27 March 2008 with a TDRL re-examination scheduled for July 2009. A 7 November 2007 informal PEB found the applicant unfit for military service due to lumbar degenerative disc disease, cervical degenerative disc disease with chronic neck pain, tailor bunion deformity with keratoma, and bilateral feet at a 20...
ARMY | BCMR | CY2008 | 20080010120
In his case, the best evidence is Doctor D___s 6 November 2007 physical examination report, which notes the required symptoms for 10 percent ratings for his neck and back. The applicant states that Army Regulation 635-40, paragraph 3-2(a)(5), states, In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier. In his case, even assuming that all four medical reports were valid and based on actual examinations, the PEB...
ARMY | BCMR | CY2006 | 20060009514
The Board considered the following evidence: Exhibit A - Application for correction of military records. The applicant requests, in effect, an increase of the 20 percent disability rating with severance pay assigned by a Physical Evaluation Board (PEB) to a 60 percent disability rating with tax free retirement pay, based on his injuries. The formal PEB recommended a disability rating of 10 percent.