IN THE CASE OF:	

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090017271 


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 was medically retired or retained on active duty and given a physical profile.

2.  The applicant states that he was separated with severance pay, but should have been medically retired or given a physical profile that would have allowed him to stay on active duty and finish his time.  He states he didn't get what was promised and would not have signed any documents if he had known he was not going to receive a medical retirement.

3.  The applicant provides several pages of his medical records including a DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings) and a DA Form 199 (Physical Evaluation Board (PEB) Proceedings).

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 military records show that he:

	a.  enlisted in the Regular Army on 24 June 1981;

	b.  reenlisted in the Regular Army in 1984, 1985, and 1989;

	c.  enlisted in the U.S. Army Reserve (USAR) on 1 February 1992;

	d.  enlisted in the Army National Guard (ARNG) in pay grade E-5 for 3 years on 30 October 1992;

	e.  was appointed as a Reserve Officer of the Army in the rank of second lieutenant in the ARNG on 21 July 1994;

	f.  was separated from the ARNG on 1 June 1996 and transferred to the USAR Control Group (Reinforcement); and

	g.  entered active duty as a commissioned officer in 2000 and served as a chaplain.

3.  The applicant's official military personnel file (OMPF) contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 July 2002.  It shows the applicant was examined on 3 August 2000 for injuries sustained to his right shoulder, lower back, and left leg during a unit football game on 2 August 2000 at Fort Sill, Oklahoma.  This was considered to have been incurred in the line of duty.

4.  The applicant's DA Form 3947, dated 9 July 2002, shows the MEBD found him to have the medically unacceptable condition/defect of degenerative joint disease of the sacroiliac joint.  The MEBD recommended referral to a PEB.  He concurred with the MEBD's findings on 17 July 2002.
 
5.  On 19 July 2002, the PEB convened.  The PEB found the applicant had degenerative joint disease of the left sacroiliac joint.  It stated his profile was extremely restrictive.  It also indicated he had assignment limitations restricting the wear of the load-bearing equipment, riding in tactical vehicles, or completing the Army Physical Fitness Test.  It further stated that based on a review of the objective medical evidence of record, the PEB found the Soldier's medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty.
6.  The PEB found him physically unfit and awarded the applicant a combined physical disability rating of 10 percent.  The PEB recommended he be separated with severance pay if otherwise qualified.

7.  The DA Form 199, block 13 (Election of Soldier) shows that on 22 July 2002 the applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case.  Block 14 (Counselor's Statement) shows that on the same date the counselor explained to him the result of the findings and recommendations of the PEB.

8.  Accordingly, on 5 September 2002 the applicant was honorably discharged from active duty for reason of disability with severance pay in pay grade O-3 based on 17 years and 27 days of service as computed under section 1208.  The percentage of disability was 10 percent.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD.  Those members who do not meet medical retention standards will be referred 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.
 
10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  Section 1201 provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

11.  An ARPC Form 249-E (Chronological Statement of Retirement Points) shows that as of 1 March 2000, the applicant had 19 years, 6 months, and 27 days of qualifying service for non-regular retired pay at age 60.  A DD Form 214 contained in his records shows a period of active service from 5 January 2000 to 5 September 2002.  There is no evidence he was ever furnished a Notification of Eligibility for Non-regular Retired Pay at Age 60 (20-year letter).

12.  Army Regulation 635-40, paragraph 4-19 states 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 following advisory statement will be entered on the DA Form 199: "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 Title 10, United States Codes, Sections 1209 and 1213, (10 USC 1209 and 1213), you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve."  This statement is not shown on his DA Form 199.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he didn't get what was promised and would not have signed any documents if he had known he was not going to receive a medical retirement.  However, he has provided no evidence to show he did not understand his separation findings and recommendations.  As such, his contention that he would not have signed the documents had he known he was not being medically retired is without basis.

2.  The applicant's DA Form 199 shows he was informed of the findings and recommendations and that he concurred with the PEB's findings and recommendation.  It appears that he should have been offered transfer to the Retired Reserve in lieu of severance pay.  However, with the absence of 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 Title 10, United States Codes, Sections 1209 and 1213, (10 USC 1209 and 1213), you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve" it is presumed that he was not offered this option.  Notwithstanding this omission, the absence of this statement from his DD Form 199 does not materially affect the determination that he was not eligible for disability retired pay or for return to active duty with a profile.  

3.  The PEB found the applicant's medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty.  He concurred with those findings at the time and has not provided any new evidence that was not previously considered by the PEB.  His argument is not sufficient to show he should have been medically retired or that he was fit for retention in the military with a physical profile.  As such, the applicant has not provided sufficiently convincing evidence or argument showing the PEB failed to properly rate his physical disabilities.

4.  As such, there is insufficient basis to grant the applicant's request.

5.  The applicant is advised that he can seek counsel from an appropriate veteran's organization of his options for receiving non-regular retired pay. 




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)                                         AR20090017271



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ABCMR Record of Proceedings (cont)                                         AR20090017271



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