BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100012005 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* in item 7b (Home of Record (HOR) at the time of Entry) the city is "Aliceville" instead of "Allisville"
*  three Army Commendation Medals (ARCOM)
* he was medically retired instead of honorably discharged under the Special Separation Benefit (SSB) Early Release Program

2.  Once his record is corrected to show he is retired, he also requests correction of his record to show he is eligible for:

* the retroactive pay and allowances he would have received as a medical retiree
* all retiree benefits and entitlements

3.  He states, in effect, that:

* the city on his DD Form 214 in item 7b HOR is misspelled
* although he was awarded three ARCOMs, his DD Form 214 only shows two
* he chose to leave the Army reluctantly, yet voluntarily under the SSB due to medical and personal hardship reasons
* although his separation orders mentioned his SSB pay was subject to recoupment if he became eligible for retired pay, there was no mention of repayment of Department of Veterans Affairs (VA) benefits
* the VA has rated him as permanently and totally disabled and unemployable as of 1 August 2008
* he was not adequately informed about the SSB program and had no idea VA compensation would be treated as retired pay
* considering the lengthy prognosis for his medical condition, he should have been medically retired
* his decision to take an early release under the SSB program when he was only 22 months away from a regular 20-year retirement is an indication of his mental/medical condition at the time
* the Army should have recognized his medical condition, disapproved his request for early release, and convened a Medical Evaluation Board (MEB), but no MEB was recommended
* his Reentry Eligibility (RE) Code of "3" indicates the Army was aware of his medical condition, otherwise he should have been assigned an RE Code of "2"
* 100% of his SSB payment has been recouped which means he has not received any compensation for his career service to his country
* early retirement, medical retirement, or waiver of his SSB recoupment are the only fair ways to resolve this situation

4.  He provides copies of:

* three self-authored letters
* his separation orders
* two letters from the VA Regional Office located in Waco, TX
* a letter from the VA Regional Office located in Los Angeles, CA
* his DD Form 214
* his W-2 Form (Wage and Tax Statement) for tax year 1995
* a letter from the Social Security Administration (SSA)

5.  His wife provides:

* a self-authored letter
* 94 pages of documents extracted from his military and civilian medical records




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.  His record contains a DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States) which shows he enlisted in the U.S. Army Reserve Delayed Entry Program on 11 November 1976.  Item 5 (HOR (City and State)) shows his HOR as "Aliceville, Alabama."

3.  He enlisted in the Regular Army on 13 July 1977 and served continuously through a series of immediate reenlistments.  

4.  His record contains evidence that he was awarded the ARCOM on three occasions for the periods shown below by the authority indicated:

* Permanent Orders (PO) 183-5, dated 20 September 1985, for meritorious service from 20 June 1984 to 2 September 1985
* PO 83-3, dated 9 December 1988, for meritorious achievement from 6 September 1985 to 17 October 1988
* PO 173-7, dated 22 June 1995, for meritorious service from 13 July 1977 to 15 July 1995

5.  In order to receive a lump sum payment, he voluntarily requested and was granted early separation under the provisions of the SSB.

6.  Headquarters, III Corps and Fort Hood, TX, Orders 115-0253, dated 25 April 1995, show he was reassigned to the U.S. Army Transition Point for transition processing with a reporting date and discharge date of 30 August 1995.
These orders also show the following pertinent information:

* he was approved for payment of SSB
* his medical benefits would expire on 28 December 1995
* his post exchange/commissary privileges would expire on 30 August 1997
* his SSB Reserve commitment would expire on 30 August 1998
* Soldiers who receive SSB and subsequently qualify for retired or retainer pay shall have deducted an amount equal to the total amount of SSB pay not previously recouped

7.  His record contains a DD Form 4 which shows he enlisted in the U.S. Army Reserve (USAR) on 8 June 1995 for a period of 3 years commencing upon his discharge from the Regular Army.

8.  His DD Form 214 shows he was honorably discharged on 30 August 1995 after completing 18 years, 1 month, and 18 days of active service.  Upon separation, he was transferred to the USAR Control Group (Reinforcement) until completion of his Reserve obligation.  He was separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-8 (Early Separation Due to Reduction in Force, Strength Limitations, or Budgetary Constraints).  His Separation Program Designator (SPD) code was "KCB" and his RE code was 3.  The narrative reason for his separation was "EARLY RELEASE PROGRAM - SPECIAL SEPARATION BENEFIT."  He received a lump sum SSB payment of $70,951.18.

9.  Item 7b of his DD Form 214 shows the city of his HOR as "Allisville."  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized (All periods of service)) shows award of the ARCOM (2nd Award).

10.  A review of the Total Army Personnel Database maintained by the U.S. Army Human Resources command shows he underwent a physical medical examination on 18 July 1996 (11 months after he was discharged under the SSB) while still a member of the Reserve which resulted in a physical profile of 111111 with no limitations in any PULHES [Physical capacity or stamina, Upper extremities, Lower extremities, Hearing and ears, Eyes, and Psychiatric] category.

11.  He provides a letter from the VA Regional Office located in Waco, TX, dated 27 September 2007, which explains his entitlements based on his 19 December 2006 VA claim for service connected compensation.  He was informed that VA benefits were being withheld due to the fact he received military separation pay in the amount of $70,951.18.  Since he received separation pay before 1 October 1996, the VA would withhold all pay until the entire amount of the SSB was paid back, then he would start receiving full VA compensation.  



12.  He was granted VA compensation with a combined rating of 60% for the following conditions with the disability percentages shown:

* Chronic headaches, status post cranial surgery, 50%
* Scar, status post ventral hernia repair, 10%

13.  He provides a letter from the VA Regional Office located in Waco, dated 12 June 2008, concerning his notice of disagreement received on 12 December 2007.  He was reminded that VA benefits were withheld due to the fact he received military separation pay and that since he received it before 1 October 1996, the VA would withhold the entire amount the military paid him until the amount was paid back, and then he would start receiving his full VA compensation.  His combined rating remained at 60%, but he was granted service connection for the following condition with the disability percentage shown:

* Cervical spine strain, 0%

14.  He provides a letter from the Office of Disability Adjudication and Review, SSA Hearing Office, Long Beach, CA, dated 29 July 2009, which shows their decision in his case was fully favorable and determined he had been disabled since 14 June 2008.

15.  He provides a letter from the VA Regional Office located in Los Angeles, CA, dated 5 January 2010, concerning his claim received on 12 May 2008 for service connected compensation for a heart murmur, his claim received on 27 June 2008 for balance problems and impaired memory, and his 24 February 2009 claim for an increased rating for his cervical spine condition.  He was again reminded that VA benefits were withheld due to the fact that he received military separation pay and that since he received it before 1 October 1996, the VA would withhold the entire amount the military paid him until the amount was paid back, and then he would start receiving his full VA compensation.  His combined rating was increased to 100%, and he was granted service connection for the following condition with the disability percentage shown:

* Chronic headaches, status post cranial surgery, now also claimed as balance problems, 50%
* Depression with cognitive impairment claimed as impaired memory associated with chronic headaches, status post cranial surgery, 0%
* Scar, status post ventral hernia repair, 10%
* Cervical spine strain, 0%

16.  His wife provides a self-authored statement and 94 pages of documents extracted from his military and civilian medical records.  She states she is a Registered Nurse with more than 20 years of experience.  She, essentially, lists his current medical conditions and attests they all started or were aggravated while he served on active duty and have resulted in him being deemed unemployable by the VA and the SSA.  She contends his 18 years of service qualified him for the Early Retirement Program that was in effect at the time of his discharge, as it only required a minimum of 15 years of active duty service.  She attests that it is her opinion and that of over ten medical and vocational experts, that her husband is permanently and totally disabled and unemployable and she believes his medical condition warranted consideration by an MEB and long-term medical care at the time of his discharge.  

17.  Although his medical record shows he sought medical attention for numerous ailments during his 18 years of active duty service, there is no indication he was diagnosed with any condition or injury that rendered him unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Additionally, his record is void of any evidence his job performance was encumbered as a result of any medical condition while serving on active duty.

18.  There is no evidence in the available records which shows the applicant was referred to the Army Physical Disability Evaluation System (PDES) for consideration by either an MEB or PEB prior to his discharge.

19.  The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown.  These incentive programs were designed to induce members of the Armed Forces to leave the military voluntarily.  Under both of the programs, the Voluntary Separation Incentive (VSI) and the SSB, qualifying service members who voluntarily left active duty before their retirement vested received benefits based on their salary at the time of separation and on years of service.  In order to qualify, a Soldier must:  have served on active duty for more than 6 but less than 20 years; have served at least 5 years of continuous active duty immediately preceding the date of separation; if a Reserve, by on the active duty list; and meet such other requirements as the Secretary could prescribe from time to time, which could include requirements relating to - years of service; skill or rating; grade or rank; and remaining period of obligated service.




20.  Under the SSB, an eligible member of the armed forces would receive a lump sum payment equal to 15 percent of the Soldier’s annual basic pay multiplied by his years of active service.  Soldiers who applied for this incentive were required to enter into a written agreement to serve in the Ready Reserve for a period of not less than 3 years, in addition to any remaining military service obligation based in statute, following the separation from active duty.

21.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated that the SPD code of KCB was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 16-8, for the Early Release Program - SSB.  The SPD/RE Code Cross Reference Table indicates that an RE code of 3 was the proper code to assign members separated with an SPD code of KCB at the time of the applicant's discharge.

22.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, USAR, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

24.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  The PEB initially conducts an informal adjudication. 
This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEB Liaison Officer for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the United States Army Physical Disability Agency to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.  

25.  Army Regulation 635-40, paragraph 4-19 states when a Soldier has a rating of less than 30% and has at least 20 qualifying years for retirement for non-regular service, the Soldier has the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or may request transfer to the Retired Reserve and receive retired pay at age 60.

26.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

27.  Title 10, U.S. Code, section 1209, states any member of the armed forces 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 his disability is less than 30% under the standard schedule of rating disabilities 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.

28.  Title 10, U.S.C., Section 12731aI(3) (Temporary Special Retirement Qualification Authority), enacted the early qualification for retired pay at age 60 for Soldiers found medically disqualified for retention in the Selected Reserve on or after 5 October 1994.  Under this provision, Soldiers who completed at least 15 but less than 20 years of qualifying service and were medically disqualified were eligible to receive retired pay at age 60.  The amount of retired pay was based on the total number of qualifying years of service at time of removal rather than the 20 years normally required.  Only Soldiers who transferred to the Retired Reserve as a result of the medical disqualification were entitled to receive this benefit.  

29.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

30.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show:

* in item 7b HOR, the city should be "Aliceville" instead of "Allisville"
* he was awarded three ARCOMs
* he was medically retired with entitlement to retroactive pay and all retiree benefits instead of honorably discharged under the SSB

2.  Evidence shows the proper spelling of his HOR city is "Aliceville."  Therefore, he is entitled to correction of item 7b of his DD Form 214 to reflect this correction.

3.  Evidence shows POs awarded him the ARCOM on three separate occasions.  Therefore, he is entitled to correction of item 13 of his DD Form 214 to show award of the ARCOM (3rd Award).

4.  Evidence shows he voluntarily requested and was granted early separation under the provisions of the SSB.

5.  Evidence shows he was appropriately assigned an RE code of 3 based on his narrative reason for separation and his SPD code.  Therefore, there is no basis for granting the applicant's requested relief.  

6.  His record is void of any evidence and he has not provided sufficient evidence of any specific injury or medical condition that would have rendered him unfit for continued service, either while in the Regular Army or while in the USAR.

7.  Army Regulation 635-40 provides, in pertinent part, that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  The VA, on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA, in its discretion, awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.

8.  An award of a VA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA awards ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.

9.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x____  ___x_____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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

	a.  Evidence shows the proper spelling of his HOR city is "Aliceville."  Therefore, he is entitled to correction of item 7b of his DD Form 214 to reflect this correction;

	b.  deleting from item 13 of his DD Form 214 the Army Commendation Medal (2nd Award); and

	c.  adding to item 13 of his DD Form 214 the Army Commendation Medal (3rd Award).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing he was medically retired with entitlement to retroactive pay and all retiree benefits.



      _________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)                                         AR20100012005



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ABCMR Record of Proceedings (cont)                                         AR20100012005



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