IN THE CASE OF:	

		BOARD DATE:	  01 June 2010

		DOCKET NUMBER:  AR20100013769 


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 his retired pay.

2.  The applicant states the following:

	a.  Injuries he sustained while driving a military vehicle in March 1998 resulted in his involuntary discharge from the Army with severance pay totaling $57,353.60 on 28 August 1990;

	b.  Immediately following his Army discharge, he applied to the Department of Veterans Affairs (VA) for disability compensation and he was granted a 70 percent (%) disability rating in 1990 and 100% in 1993;

	c.  The VA began deducting money from his VA disability compensation in various amounts starting 1 September 1990 to reimburse the Army the severance pay he received;

	d.  In April 2007, he completed an application for retirement and returned it to the Retirement Personnel Office, Frankfort, KY;

	e.  In September 2008, he received retirement orders confirming his placement on the Retired List on 4 March 2007, and he was issued his first retired pay installment on 2 February 2009;


	f.  In February 2009, the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) informed him his retirement orders were revoked because he received severance pay and once paid back in full, he could receive retired pay;

	g.  Upon verifying the amount of severance pay still owed with the VA, he remitted a cashier’s check in the amount of $15,649.60 to the VA and faxed a copy of the receipt to HRC-STL on 11 March 2009;

	h.  On 24 July 2009, HRC-STL reissued retirement orders;

	i.  On 11 August 2009, the Defense Finance and Accounting Service (DFAS) issued him a letter confirming his debt was cancelled; and 

	j.  He has completed all actions required of him in order to receive retired pay and although he was previously told he would not have to submit an application to this Board, he now seeks reinstatement of his retired pay.

3.  The applicant provides the following documents:

* Self-authored statements, dated 11 March, 5 August, and 10 September 2009
* Retirement orders, dated 9 September 2008 and 24 July 2009
* HRC-STL letter
* VA letters, dated 2 and 11 March, 5 June, and 25 August 2009
* Xeroxed copy of a cashiers/certified check with client’s copy
* VA Form 5602 (Receipt for Returned Treasury Check)
* DFAS letters, dated 6 July and 8 August 2009 with attachments
* Express Mail mailing label
* U.S. Postal Service mailing label

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 record show he initially enlisted in the Army National Guard (ARNG) and he served in that capacity in an active status and/or on active duty from 29 April 1965 to 26 July 1982, at which time he was honorably discharged from the Kentucky ARNG (KYARNG).  The National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) shows he completed
17 years, 2 months, and 28 days of creditable active service.

3.  On 27 July 1982, the applicant was appointed a Reserve warrant officer of the Army in the rank of chief warrant officer two (CW2), accepted appointment in the ARNG, and he was granted Federal recognition in the KYARNG.

4.  The applicant was ordered to full time active duty in the KYARNG and he entered active duty on 7 May 1984.  He was awarded and served in area of concentration (AOC) 920A (Property Accounting Technician).

5.  On 28 August 1990, the applicant was processed through the Army’s Physical Disability Evaluation System (PDES) and he was honorably discharged from active duty by reason of “physical disability - severance pay” totaling $57,393.60. The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at that time shows he completed a total of 11 years, 5 months, and
12 days of active duty service and 13 years, 10 months, and 18 days of total prior inactive service.

6.  On 9 September 2008, HRC-STL issued Orders P07-813861 directing the applicant's placement on the Army of the United States (AUS) Retired List on
4 March 2007, his 60th birthday.

7.  The Chief, Transition and Separations, HRC-STL, informed the applicant that his retirement orders were revoked based on his having received severance pay from the Army.  He was further reminded that if he chose to elect to receive severance pay, he severed all ties between the Army and himself.

8.  On 6 July 2009, DFAS issued the applicant a letter and an Account Statement informing him he incurred a Retired pay debt due to his receipt of severance pay through 28 February 2009.  He was also informed that had been overpaid in the amount of $35,387.98.

9.  On 11 August 2009, DFAS notified the applicant his debt of $35,387.98 was cancelled.

10.  On 24 July 2009, the Chief, The Adjutant General (TAG) Directorate, West, HRC-STL issued Orders Number P07-908490, again directing the applicant’s placement on the AUS Retired List on 4 March 2007.
11.  Title 10, U.S. Code, section 12731 provides the legal authority and age and service requirements to receive non-regular retired pay at age 60.  It states, in pertinent part, that members of the Reserve Components who complete at least 20 years of qualifying service are eligible to receive retired pay upon application at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be authorized retired pay based on his completion of over more than 20 years of qualifying service and repayment of his disability severance pay has been carefully considered and found to have merit.

2.  By law, members of the Reserve Components who complete at least 20 years of qualifying service are eligible to receive retired pay upon application at age 60.

3.  The evidence of record confirms the applicant’s processing through the Army’s PDES ultimately led to his discharge from active duty by reason of physical disability with severance pay on 28 August 1990, as evidenced by his DD Form 214 on file.  In 2008, 18 years after this action, HRC-STL published orders authorizing the applicant's placement on the Retired List, effective
4 March 2007, his 60th birthday.  The orders were later properly revoked because the applicant had received disability severance pay.

4.  During this process, the applicant was informed by officials at HRC-STL that he could in fact qualify for retired pay if he repaid his severance pay and all debts to the government.  The applicant followed these instructions and paid the debt in full, as confirmed by the DFAS action cancelling the debt.  Subsequently,
HRC-STL again authorized the applicant's placement on the Retired List, effective 4 March 2007.  However, it appears DFAS has refused to honor this action, without action by this Board, because his discharge orders have never been revoked.

5.  The evidence of record confirms the applicant was originally eligible to elect non-regular retirement instead of separation with severance pay at the time of his disability separation in 1990.  It appears the applicant may not have been given the opportunity to elect receipt of retired pay in lieu of disability severance pay.  It further shows the applicant was informed by officials at HRC-STL that repayment of his severance pay would qualify him for non-regular retirement pay at age 60.

6.  Further, the record confirms HRC-STL retirement officials twice published orders authorizing the applicant's placement on the Retired List, effective
4 March 2007, his 60th birthday.  As a result, given the applicant was originally eligible and because his placement on the Retired List was authorized by the responsible Army agency, it would be appropriate and serve the interest of justice and equity to correct his record by voiding his 28 August 1990 disability discharge with severance pay, and to show he was instead transferred to the Retired Reserve on that same date.

7.  Further, the applicant should be provided all back retired pay due from 
4 March 2007, minus any severance pay or retired pay that may not have been previously collected.

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 voiding his 28 August 1990 disability discharge and to show he was instead transferred to the Retired Reserve on that same date; and by providing him all back retired pay due from 4 March 2007, minus any severance pay or retired pay that may not have been already collected.



      __________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)                                         AR20100013769



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013769



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1