IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011906 


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 reinstatement of her U.S. Army Reserve (USAR) retirement as stipulated in her Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  She also requests a personal hearing.

2.  The applicant states she applied for a USAR non-regular retirement in January 2008 but she was denied because she had previously accepted disability severance pay.  However, she did not realize that by accepting severance pay she would no longer be eligible for retired pay.  She does not recall signing any documentation waiving her retired pay.  At the time of her medical disability separation in January 2000, she had completed 22 years,        8 months, and 1 day of qualifying service, of which 14 years and 10 days was active service.  She would never have given up her Reserve retirement in exchange for disability severance pay.  At the time of separation, she was medicated and depressed.  She does not recall ever having a medical evaluation board (MEB) or a physical evaluation board (PEB).

3.  The applicant provides copies of the following documents:

* DD Form 108 (Application for Retired Pay Benefits)
* DD Form 2656 (Data for Payment of Retired Personnel)
* Twenty-Year Letter
* Denial of retirement pay letter, dated 15 July 2008
* Various medical documents, consults, and records of medical care
* List of medications

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant's separation be changed to a retirement.

2.  Counsel states, in effect, the applicant should be retired.

3.  Counsel did not provide any additional documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was born on 28 September 1948.

2.  Having had prior service, the applicant enlisted in the USAR on 8 April 1978 and held military occupational specialty (MOS) 75B (Personnel Administration Specialist).  She served through multiple reenlistments in the USAR and attained the rank/grade of sergeant first class (SFC)/E-7.  

3.  On 20 May 1998, the U.S. Army Reserve Command, St. Louis, MO, issued the applicant her Twenty-Year Letter.  This letter notified her that she had completed the required years of qualifying service and would be eligible for retired pay on application at age 60 in accordance with Title 10, U.S. Code (USC), chapter 1223.  

4.  The facts and circumstances surrounding her discharge from the USAR are not available for review with this case.  However, the medical records she submitted show, on 10 December 2000, she was diagnosed with an adjustment disorder with mixed anxiety and a depressed mood and failed back syndrome.  

5.  It appears at some point subsequent to this diagnosis, while assigned to the U.S. Army Reserve Personnel Command, St. Louis, MO, and attached to the 694th Maintenance Battalion, St. Antonio, TX a command surgeon of her servicing Regional Support Command reviewed her medical records and determined she was medically unacceptable for retention.  

6.  It also appears she was notified that as a result of a medical determination, she was found medically disqualified for continued service in the USAR and as a result of this disqualification she underwent an MEB that would have referred her to a PEB.  Neither document is available for review with this case. 

7.  Her election and any subsequent actions by her chain of command or medical authorities are not available for review with this case.  However, her records contain a properly-issued discharge order which indicates she elected an honorable discharge with entitlement to severance pay.  
8.  Accordingly, on 22 December 1999, the U.S. Army Reserve Command, St. Louis, MO, published Orders D-12-800312 discharging her from the USAR effective 29 January 2000 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability.  The orders also stated:

* Her disability rating was 20% and as such, she was entitled to disability severance pay
* She had completed 22 years, 8 months, and 1 day for pay purposes, of which 14 years and 10 days was active service
* Her disability was based on an injury or disease not received in line of duty

9.  She was honorably discharged on 29 January 2000.  Her pay records show she received $66,585.60 of tax-exempt disability severance pay.  

10.  On 3 January 2008, she applied for retired pay at age 60, electing a desired retirement date of 1 October 2008 (Her 60th birthday fell on 28 September 2008). However, officials at the U.S. Army Human Resources Command, St. Louis, MO, denied her request because she was ineligible for retired pay since she received disability severance pay upon discharge from the USAR.  

11.  She submitted a listing of various medications prescribed, issued or taken from October 1996 to September 2001. 

12.  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, USC, 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.  

13.  Title 10, USC, section 1213 (Effect of Separation on Benefits and Claims) states unless a person who has received disability severance pay again becomes a member of an armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service, she is not entitled to any payment 
from the armed force from which she was separated for, or arising out of, her service before separation, under any law administered by one of those services or for it by another of those services.  However, this section does not prohibit the payment of money to a person who has received disability severance pay, if the money was due her on the date of separation or if a claim by her is allowed under any law.

14.  Army Regulation 15-185 governs operations of the Army Board for Military Corrections (ABCMR).  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her USAR retirement should be reinstated based on the issuance of a 20-year letter. 

2.  The evidence of record shows the applicant suffered certain medical conditions that appear to have rendered her medically disqualified for continued service in the USAR.  Her record is void of the facts and circumstances, specifically an MEB and/or a PEB that led to her discharge.  However, her record contains a properly-constituted discharge order that shows she was discharged on 29 January 2000 under the provisions of Army Regulation 635-40 by reason of disability with entitlement to severance pay. 

3.  The issuance of a discharge order with entitlement to severance pay under the provisions of Army Regulation 635-40 required the applicant to undergo an MEB and a PEB.  It is presumed the PEB found the applicant's conditions prevented her from performing the duties required of her grade and specialty and recommended that she be separated with severance pay.  

4.  Unfortunately, without the entire MEB/PEB packet to review, in the absence of evidence to the contrary it is presumed all requirements of law and regulation were met.  Although the applicant requested a personal hearing, without the entire MEB/PEB packet to review a personal appearance hearing could not determine whether or not the applicant was properly discharged with severance pay in lieu of retired pay at age 60 because, again, administrative regularity would have to be presumed.

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)                                         AR20100011906



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ABCMR Record of Proceedings (cont)                                         AR20100011906



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