IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100015060 


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 he was retired instead of medically discharged with entitlement to severance pay. 

2.  The applicant states he completed more than 20 years of total active and Reserve service and he should have been retired.  He was told he could not retire at age 60 if he accepted the severance pay.  He received the severance pay; however, he has now repaid it in full. 

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty ) for the period ending 30 September 1977
* his DD Form 214 for the period ending 20 January 1989
* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 20 December 1977
* his NGB Form 22A (Correction to NGB Form 22), dated 14 November 1977

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 records show he was born on 15 September 1935.

3.  He enlisted in the U.S. Air Force (USAF) on 24 September 1952.  He was honorably released from active duty on 4 November 1966 and he was transferred to the USAF Reserve (USAFR) to complete his remaining service obligation.  He completed 4 years of total active service with 42 days of time lost.

4.  He was discharged from the USAFR on 22 June 1960 and he enlisted in the New York Army National Guard (NYARNG) on 23 June 1960.  He was honorably discharged from the NYARNG on 15 July 1962.

5.  He enlisted in the U.S. Army Reserve (USAR) on 24 April 1974.  He entered active duty for training (ADT) on 27 April 1975, he completed training, and he was honorably released from ADT on 8 November 1974.  He completed 5 months and 20 days of active service during this period for a total of 4 years, 5 months, and 20 days of active service.

6.  He again enlisted in the NYARNG on 1 July 1975.  He entered active duty on 1 April 1977 and was honorably discharged on 30 September 1977.  He completed 6 months of active service during this period and he had 4 years,
5 months, and 20 days of prior active service for a total of 4 years, 11 months, and 20 days. 

7.  The DD Form 214 for the period ending 30 September 1977 credited him with 8 years, 5 months, and 20 days of prior active service.  It is unclear how he earned an extra 4 years of prior active service.

8.  He was honorably discharged from the ARNG on 20 December 1977 and he was transferred to the USAR.  He volunteered for and entered active duty in an Active Guard Reserve (AGR) status on 16 January 1978.  He served in various positions and attained the rank/grade of sergeant first class (SFC)/E-7.

9.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated
7 November 1988, shows an informal PEB convened in San Francisco, CA, and found him physically unfit to perform the duties required of his grade and specialty by reason of chronic back pain.  The PEB recommended a 20 percent (%) disability rating percentage and his separation with entitlement to severance pay.  The PEB also pointed out that as a Soldier with a rating of less than 30% who may have at least 20 qualifying years for non-regular retirement under the provisions of Title 10, U.S. Code, chapter 67, he had the option of accepting disability severance pay and forfeiting his Reserve retirement or being placed on an inactive (Reserve) status and receive Reserve retired pay at age 60 by forfeiting the severance pay.

10.  On 8 November 1988, he concurred with the PEB's findings and recommendations and elected to take the severance pay.

11.  He was honorably discharged on 20 January 1989 by reason of physical disability with entitlement to severance pay.  He completed 11 years and 5 days of active service during this period and he had a total of 4 years, 11 months, and 20 days of prior active service for a total of 15 years, 11 months, and 25 days.  The DD Form 214 he was issued erroneously credited him with 8 years, 11 months, and 5 days of prior active service for a total of 19 years, 11 months, and 25 days.  This form also shows he received $46,288.80 in severance pay. 

12.  His current ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed 17 years, 1 month, and 12 days of qualifying service toward non-regular retirement. 

13.  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 office, grade, rank, or rating.  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

14.  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%.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, a member of the USAR, was found physically unfit while in an AGR status and he was subsequently considered by a PEB that recommended his separation with entitlement to severance pay.  The two issues here are his total active or qualifying service and his disability separation. 

2.  With respect to his years of active service, the available evidence of record shows the applicant completed 15 years, 11 months, and 25 days of total active service and 17 years, 1 month, and 12 days of qualifying service toward non-regular retirement.  It appears his USAFR service from November 1956 to June 1960 was erroneously counted as active service on his final DD Form 214 as well as the previous one.  There is no evidence he completed 19 years, 11 months, and 25 days of active service as reflected on his DD Form 214 for the period ending 20 January 1989.

3.  With respect to the total active and Reserve service, he may have completed more than 20 years of service for pay but he did not have 20 or more qualifying years for non-regular retirement.  However, even if he had 20 qualifying years, by law, Soldiers who have completed 20 or more qualifying years of service towards non-regular retirement and who are subsequently awarded a disability rating of less than 30% have the option of accepting severance pay and forfeiting retired pay at age 60 or forfeiting severance pay and electing retired pay at age 60.  Soldiers who fall into this category may not receive both disability benefits and retired pay for non-regular retirement.  Since he accepted the severance pay, he is not entitled to retired pay at age 60.

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)                                         AR20100015060



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ABCMR Record of Proceedings (cont)                                         AR20100015060



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