IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100014884 


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 his discharge for physical disability with severance pay be changed to a 15-year retirement.

2.  The applicant states he should have been granted early retirement instead of a medical discharge with severance pay.  He states he was discharged after serving 19 years and 1 month.  He considers this unjust because the Army was offering early retirement for anyone with 15 years or more.

3.  The applicant provides copies of:

* a letter from his Congressional representative, dated 20 April 2010
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 19 October 1992
* his DA Form 199 (Physical Evaluation Board Proceedings (PEB)), dated 30 July 1992
* a PEB Liaison Officer (PEBLO) Counseling Checklist/Statement, dated 12 August 1992
* a copy of an Air Force Fiscal Year 1993 (FY93) Reduction-in-Force Board website

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.  After having had prior service, the applicant enlisted in the Regular Army on 24 January 1974.  He served continuously on active duty until the date of his discharge on 19 October 1992.  He was awarded primary military occupational specialty (MOS) 19K (Armor Crewman) on 3 May 1991.  He held secondary MOS 76Y (Unit Supply Specialist).

3.  On 15 July 1992, a medical evaluation board (MEB) found the applicant did not meet retention standards for osteoarthritis in his right foot and referred him to a PEB for severe osteoarthritis.

4.  The applicant agreed with the findings and recommendation of the MEB.  The applicant indicated that he did not desire to continue on active duty.

5.  The applicant's PEBLO Counseling Checklist/Statement, dated 12 August 1992, indicates he was informed of the criteria for requesting continuance on active duty or in the Active Reserve.  The applicant signed this checklist on 12 August 1992.

6.  On 30 July 1992, an informal PEB found the applicant unfit for duty under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities code 5271 for osteoarthritis, right foot and ankle, manifested by pain and marked limitation of motion.  Based on a review of the objective medical evidence of record, the PEB found his medical and physical impairment prevents reasonable performance of his duties required by grade and MOS.  The PEB recommended a combined rating of 20 percent and that he be separated with severance pay, if otherwise qualified.

7.  After having been advised of the findings and recommendation of the PEB and having received a full explanation of the results of the findings and recommendation and legal rights pertaining thereto, the applicant concurred with the findings and recommendation and waived a formal hearing of his case.

8.  Total Army Personnel Command [now known as U.S. Army Human Resources Command] message, dated 311252Z August 1992, subject:  Enlisted Disability Separation, directed that the applicant be separated with a disability rating of 20 percent.

9.  On 19 October 1992, the applicant was discharged by reason of physical disability with severance pay.  He completed 18 years, 8 months, and 6 days of active service that was characterized as honorable.

10.  In the processing of this case an advisory opinion was received from the U.S. Army Physical Disability Agency (USAPDA).  USAPDA stated the applicant was discharged because of arthritis of his right foot and ankle.  He was found unfit and properly awarded a 20-percent disability rating, which was the maximum rating for his condition.  He was advised of his right to request continuation on active duty, but there was no evidence of him making such a request.  USAPDA stated it was reasonable to conclude the applicant's processing in the Physical Disability Evaluation System (PDES) was correct.  USAPDA stated that decisions regarding requests for early retirement were not within the purview or authority of USAPDA.

11.  In a rebuttal to the advisory opinion, dated 10 January 2011, the applicant stated he was not advised about requesting continuation of active service.  He stated he was advised to take the 20-percent disability severance pay or risk getting a medical discharge at zero percent.  He stated the early retirement authority became effective on 23 October 1992 and he was discharged on 19 October 1992.  He stated his chain of command and the PEB should have known about the new program and allowed him to remain on active duty for 4 more days.

12.  Section 4403 (Temporary Early Retirement Authority) of the National Defense Authorization Act (NDAA) for FY93 provided the Secretary of Defense with a temporary additional force management tool with which to effect the drawdown of military forces through 1995.  The NDAA FY93 provided that the Secretary of each military department may prescribe regulations and policies regarding the criteria for eligibility for early retirement by reason of eligibility pursuant to this section and for the approval of applications for such retirement. Such criteria may include factors such as grade, years of service, and skill.  For purposes of this section, the active force drawdown period was the period beginning on the date of the enactment of this Act and ending on 1 October 1995.

13.  Total Army Personnel Command message, dated 201010Z April 1993, subject:  FY93 Early Retirement Program, implemented the provisions of section 4403 of the NDAA FY93 for the Department of the Army for FY94.  Paragraph 3(4) listed the primary MOS's and grade with the minimum number of years of active service as of 31 August 1993 that were eligible.  MOS 19K was not among those MOS's listed.

14.  Title 10, U.S. Code, section 1176, states a Regular enlisted member who is selected to be involuntarily separated or whose term of enlistment expires and who is denied reenlistment and who, on the date on which the member is to be discharged, is within 2 years of qualifying for retirement under section 3914 or section 8914 of this title, shall be retained on active duty until the member is qualified for retirement unless the member is sooner retired or discharged under any other provision of law.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been granted a 15-year retirement instead of a discharge with severance pay.  He contends the Army was offering early retirement for anyone with 15 or more years of service.  He contends he was not advised about requesting continuation of active service and he should have been allowed to remain on active duty for 4 more days to retire under the early retirement program.

2.  When the applicant agreed with the findings and recommendation of the MEB, he indicated he did not desire to continue on active duty.  The PEBLO Counseling Checklist/Statement indicates the applicant was informed of the criteria for requesting continuance on active duty or in the Active Reserve.  The applicant signed this checklist on 12 August 1992.  Therefore, his contention of not being advised on requesting continuation on active duty is not supported by the evidence.

3.  The early retirement program which the applicant requests he be allowed to participate in was instituted in FY93 as one of several programs implemented to reduce the strength of the Army.  Although the drawdown period was authorized beginning 23 October 1992, the Army did not implement the program until it issued its April 1993 message.  The program targeted specific occupational groups, grades, and years of service.  The early retirement program was strictly a management tool and was never intended as an entitlement program for anyone with 15 to 20 years of service.

4.  The applicant's MOS 19K was not identified as eligible for the early retirement program in Total Army Personnel Command message, dated 201010Z April 1993.  Therefore, he would not have been able to participate in the program even if he had remained on active duty.

5.  The applicant was not protected under the sanctuary portion of Title 10 U.S. Code, section 1176, because he was discharged under another provision of law, Title 10 U.S. Code, section 1203.

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 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)                                         AR20100014884



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ABCMR Record of Proceedings (cont)                                         AR20100014884



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