IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016189 


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 reconsideration of her earlier request for correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she retired by reason of permanent disability with the appropriate separation code. 

2.  The applicant states her separation code is incorrect.  This code should reflect physical disability as well as retirement.  She had previously undergone a physical evaluation board (PEB) that determined she was physically unfit.  She did not concur with this decision; however, she had completed over 18 years of active service at the time and the Army decided to discharge her with severance pay.  She was told at the transition center that she could retire under the Temporary Early Retirement Authority (TERA) and did so.  She feels the Army forced her out because of disabilities she incurred while on active duty.  This was the primary reason she did not remain on active duty.  Her separation code should reflect the disability for which she was discharged.  The current separation code of "RBE" is deceptive because it shows she chose to get out of the Army rather than being forced out.  This was and remains a concern at the time she signed her DD Form 214.  Her Post 9/11 education benefits are reduced as a result of this code. 






3.  The applicant provides:

* Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) Proceedings 
* Immediate commander's duty performance memorandum
* DA Form 199 (PEB Proceedings)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090014650 on 3 June 2010.

2.  The applicant did not submit any new documentary evidence; however, she submitted a new argument which was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show she enlisted in the Regular Army on 20 January 1982 and held MOS 31R (Multi-Channel Transmission Systems Operator).  She served in various staff and leadership positions within and outside of the continental United States.  She also attained the rank/grade of staff sergeant (SSG)/E-6.  

4.  On 26 September 2000, while assigned to Fort Bliss, TX, the applicant underwent an MMRB to determine her limitations based on a recent permanent physical profile.  The MMRB determined the applicant's limitations were prohibitive and precluded re-training or reclassification into another MOS.  The MMRB recommended that the applicant be evaluated by a medical evaluation board (MEB) and possibly a PEB.

5.  On 2 November 2000, by memorandum, her immediate commander submitted a duty evaluation letter indicating she was able to perform duties in the orderly room.  He also recommended she be moved to a non-tactical environment.

6.  The applicant's medical narrative summary and MEB are not available for review with this case.  However, it appears the MEB recommended that she be referred to a PEB.


7.  On 2 July 2001, an informal PEB convened at Fort Lewis, WA, and found her medical condition prevented her from performing the duties required of her grade and specialty and determined that she was physically unfit due to neck, right shoulder, and thoracic back pain following an accident in 1995.  She was rated under the Veterans Affairs Schedule for Rating Disabilities and granted a 10% disability rating for her condition.  The PEB recommended that she be separated with entitlement to severance pay, if otherwise qualified.  The PEB also alerted her that she was eligible for the TERA program as an exception to policy in lieu of accepting the separation for disability.  The applicant did not concur with the findings and recommendation and requested a formal hearing with a personal appearance and representation by counsel.

8.  She did not provide and the available records do not contain the outcome of that hearing.  However, she provided documents showing that she applied for voluntary early retirement in lieu of separation under the TERA.

9.  On 4 October 2001, the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command), Alexandria, VA, approved her request for early retirement and directed that her DD Form 214 be annotated with the following entries:  "Member is retiring as provided by section 4403 of the FY 1993 (Fiscal Year 1993), National Defense Authorization Act (NDAA), Public Law 
102-484 and that she may qualify for re-computation of retired pay at age 62.  In item 26 (Separation Code) enter "RBE," in item 27 (Reentry Code) enter RE-4, and in item 28 (Narrative Reason for Separation) enter Voluntary Early Retirement." 

10.  She was retired on 31 December 2001 and transferred to the Retired List effective 1 January 2002 in her retired rank/grade of SSG/E-6 due to Voluntary Early Retirement.  Her DD Form 214 shows she was retired in accordance with chapter 12 of Army Regulation 635-200 (Personnel Separations).  She had completed 19 years, 2 months, and 10 days of total active service.  Additionally, this form shows the following entries:

* item 26 shows "RBE"
* Item 28 shows "Voluntary Early Retirement"

11.  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 percent.  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 percent.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  A disability rating of 30% or higher as determined by the Physical Disability Evaluation System (PDES) entitles a Soldier to retirement benefits.  Personnel who receive less than a 30% disability rating are afforded severance pay if eligible.

13.  In 1993, Congress approved the use of a TERA program as a drawdown tool.  This allowed the Army to offer early retirement to selected Soldiers who have at least 15, but not yet 20 years of service under the Voluntary Early Retirement Program.  Early retirement was not an entitlement and the Army offered it only to selected Soldiers in excess grades and skills.  The original authority for use of TERA expired at the end of FY 1999, but was extended until 31 December 2001.  The authority for TERA is codified in Title 10, U.S. Code, section 1293.  The Army did not utilize this provision of the law during FY 2001 except for members who were recommended for discharge due to physical disability.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers.  A Soldier who has completed 20 but less than 30 years of active federal service in the U.S. Armed Forces may be retired at his or her request. The Soldier must have completed all required service obligations at the time of retirement.  

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that SPD codes are three-character alphabetic combinations which identify reasons for, and types of separation from active duty.  The SPD code of "RBE" is the correct code for Soldiers separated under the provisions of chapter 12 of Army Regulation 635-200 by reason of voluntary early retirement. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had a medical condition that warranted entry into the PDES.  Her records appear to have undergone an MEB that referred her to a PEB.  The PEB considered her medical condition and found it prevented her from performing her duties.  The PEB thus determined she was physically unfit for further military service and recommended separation with entitlement to severance pay. 
2.  She was counseled and informed of the findings and recommendations of the PEB as well as her legal rights pertaining thereto.  Based on this counseling, she elected not to concur with the findings and recommendations and requested a formal hearing of her case.  The disposition of her request regarding the formal hearing is not available for review with this case.

3.  Nevertheless, the available evidence shows she did not accept the severance pay and elected instead to apply for early retirement under the TERA.  Her request was approved and based on her voluntary request she was ultimately retired under TERA on the last day the program was available.  Since she was rated less than 30% disabled she did not qualify for a medical retirement.

4.  Her narrative reason for separation and her separation code were assigned based on the fact that she was retired under the provisions of chapter 12 of Army Regulation 635-200 under the TERA program subsequent to her voluntary request.  The underlying reason for her retirement under this program was her voluntary request.  The only valid narrative reason for separation permitted under this paragraph is "Voluntary Early Retirement" and the appropriate separation code associated with this discharge is "RBE" which is correctly shown on her 
DD Form 214.  

5.  Her physical disability evaluation was conducted in accordance with law and regulations.  It is acknowledged that the applicant had over 19 years of creditable active service; however, a Soldier who is found unfit due to a disability is not protected from a medical discharge by reason of disability even if that Soldier has 19 years or more service.  Therefore, in the absence of evidence to show she was not properly evaluated under the PDES there appears to be no basis to grant her request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090014650, dated 3 June 2010.



      _______ _ 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)                                         AR20100016189



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ABCMR Record of Proceedings (cont)                                         AR20100016189



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