IN THE CASE OF:	  

		BOARD DATE:	    8 March 2011

		DOCKET NUMBER:  AR20100016872 


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 records to show he was transferred to the Retired Reserve and issued a Notification of Eligibility for Non-Regular Retired Pay at Age 60 (15-Year Letter) instead of being discharged for disability with severance pay.  

2.  The applicant states after 19 years and 10 months of total service, he was injured during combative training while on active duty supporting the Warrior Transition Course.  He underwent a medical evaluation board (MEB) that referred him to a physical evaluation board (PEB).  The PEB recommended that he be discharged with a 10% disability rating with severance pay.  However, when he was discharged, he was told at the hospital that he would still be eligible for retirement from the Army National Guard (ARNG) because his disability was being handled with the active side which had no say on what the ARNG would decide.  But, the New Mexico ARNG (NMARNG) told him he took the severance pay and he was no longer entitled to retirement.  He is now in the process of paying back the severance pay and he would like to be put in the Retired Reserve because he was misled into thinking he would be able to keep his benefits after 19 years in the military.  He was previously credited with saving three lives and all he asks for in return for his faithful service is to keep his Post Exchange (PX) and commissary privileges. 

3.  The applicant provides his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) and Orders 079-009, issued by the NMARNG.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he initially enlisted in the New York ARNG (NYARNG) on 30 November 1987.  He served on active duty for training from
6 July to 23 September 1988 and he was awarded military occupational specialty 91A (Medical Specialist).  He was honorably discharged from the ARNG on 
28 March 1989.

2.  He enlisted in the Regular Army on 29 March 1989 and he was honorably discharged on 1 June 1990.  After a short break, he enlisted in the NMARNG on 18 September 1992 and extended his enlistment by 5 years on 10 August 1995.  He was again honorably discharged from the ARNG on 30 March 1999.

3.  He enlisted in the NYARNG on 6 July 2000 and he served on active duty in support of Operation Noble Eagle from 2 October 2001 to 26 May 2002.  He was honorably discharged from the ARNG on 19 June 2003.

4.  He enlisted in the U.S. Army Reserve (USAR) on 20 June 2003 and he was discharged from the USAR on 30 December 2004.  Prior to his discharge, he executed a 4-year enlistment in the NMARNG on 26 October 2004.  He followed that with a 1-year extension on 10 October 2008.

5.  His records show he was ordered to extended active duty for special work on 1 February 2005 in support of the Warrior Transition Course in accordance with Title 32, U.S. Code (USC), section 502, and he was assigned to Headquarters and Headquarters Company, 2nd Brigade, 200th Infantry, Fort Bliss, TX.

6.  On 12 September 2008, he complained of low back pain.  Upon examination, he was determined to have developed low back pain during combative training.  Since this injury, he continued to have constant pain until he underwent surgical intervention in February 2007 when he had L5/S1 fusion.  Nevertheless, he continued to have constant ache-type pain and he was treated with physical therapy.  His final diagnosis was that of chronic low back pain and degenerative disc disease.  The military physician determined the applicant was unable to satisfactorily perform the duties expected of his rank or specialty and recommended that he be entered into the physical disability evaluation system (PDES).

7.  On 30 December 2008, an MEB convened at Beaumont Army Medical Center, El Paso, TX, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of low back pain and degenerative disc disease.  The MEB recommended that he be referred to a PEB.  He agreed with the MEB's findings and recommendation.

8.  On 29 January 2009, an informal PEB convened at Fort Lewis, WA, and found his medical condition of spinal fusion, back pain first noted in January 2006, prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit.   

9.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and he was granted a 10-percent (10%) disability rating for code 5241.  The PEB also considered other medical conditions; however, these conditions were not found to be unfitting and therefore they were not rated.  The PEB recommended that the applicant be separated with entitlement to severance pay, if otherwise qualified.

10.  On 30 January 2009, subsequent to counseling by a PEB Liaison Officer (PEBLO), he concurred with the PEB’s finding and recommendation, waived his right to a formal hearing, and elected to receive disability severance pay.  He and his counselor authenticated the DA Form 199 (PEB Proceedings) and placed their signatures in the appropriate places.  Additionally, the DA Form 199 shows the following entry as an indication of proper counsel and the statement is signed by the applicant and his representative:

"I have informed the Soldier of the findings and recommendations of the PEB and explained to him the result of the findings and recommendations and his legal rights pertaining thereto.  The Soldier has made the election(s) shown above."

11.  On 20 February 2009, the applicant was honorably discharged in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay, non-combat related.  The DD Form 214 he was issued shows he was awarded $60,658.20 in severance pay. 

12.  On 20 February 2009, he was honorably discharged from the ARNG.  His NGB Form 22 shows he completed 16 years, 6 months, and 11 days of qualifying service for retired pay.

13.  An advisory opinion was obtained on 14 February 2011 from the National Guard Bureau (NGB).  An official recommended disapproval of the applicant's request.  The official stated:

	a.  The PEB determined he was physically unfit and recommended a 10% rating and his separation with entitlement to severance pay.  The applicant concurred, waived his right to a formal hearing, and received $60,658.20 in severance pay.  His NGB Form 22 shows he completed 16 years, 6 months, and 11 days of qualifying service for retired pay.  Since he was rated at less than 30% and he had less than 20 years of service, receipt of severance pay was the only option available.

	b.  Army Regulation 635-40 requires Soldiers processing for disability be notified of their options with sufficient details including verified years of service for severance pay and Reserve years of service for retirement to assist the Soldier reach an informed decision.  An election, one made, is final and cannot be changed.  The PEBLO states the applicant had received proper counseling.

	c.  A retirement services subject matter expert (SME) disagreed and stated that he does not believe the applicant was counseled regarding his opportunity to receive a 15-year letter and that he should be given every ounce of consideration for having his severance pay be labeled as erroneous payment which would allow the Defense Finance and Accounting Service to recoup the severance pay and the individual to be placed in the Retired Reserve.  The SME believes PEBLOs are not accurately counseling Soldiers. 

	d.  Despite the SME's opinion and due to lack of evidence that confirms the applicant did not have a clear understanding concerning the loss of benefits upon accepting severance pay, the official states the Army Board for Correction of Military Records may give him an opportunity to receive a 15-year letter.  This action is in accordance with the law and NGB G-1 guidance. 

	e.  the State may issue a 15-year letter to ARNG members who no longer meet qualifications for membership in the Selected Reserve because they are unfit for physical disability (with exceptions).  Soldiers issued a 15-year letter have two options: honorable discharge or transfer to the Retired Reserve.

	f.  By law, Soldiers who received severance pay and who subsequently qualify for retired pay shall have deducted an amount equal to the full amount of severance pay. 

14.  On 16 February 2011, the applicant provided a rebuttal wherein he again stated he was not counseled regarding the issue of a 15-year letter until after he was out of the military.  The counselor at Fort Bliss had previously told him he would had to have 20 qualifying years in order to qualify for retirement and that is why he elected to take the severance pay.  Nonetheless, he has been paying the severance pay since May 2009 and will continue to do so.  He did not realize at the time of the 15-year letter option and he would have made a different decision. His years of service should be approximately 19 years and 5 months.  The only break in service he had was from 1900 to 1992. 

15.  The applicant's NGB Form 23A (ARNG Current Annual Statement) is not available for review with this case.  Furthermore, his most recent Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points) is not updated and only reflects 1 qualifying year for retirement. 

16.  The applicant was counseled and understood the criteria and procedures for requesting continuation on active duty or continuation on Reserve duty; however, there is no indication he submitted a request. 

17.  Title 10, USC, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application, to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

18.  Title 10, USC, section 12731b provides a special rule for members with physical disabilities not incurred in the line of duty.  It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member the notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in a RC due to disability not incurred in line of duty.  

19.  Army Regulation 635-40 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.  It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.
20.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Rating can range from 
0 to 100% rising in increments of 10%.  

21.  Paragraph 8-7 of Army Regulation 635-40 states RC Soldiers referred into the PDES with an MEB and who are determined unfit by the PEB may request Continuation on Active Reserve Status under the provisions of chapter 6 of this regulation.  

22.  Paragraph 8-9 of Army Regulation 635-40 states:

	a.  A Soldier not on extended active duty who is unfit because of physical disability may be permanently retired if he or she has at least 20 years of service as defined in Title 10, USC, section 1208, their disability is rated at 30% or more, and his or her disability occurred in the line of duty, and is the proximate result of performing active duty or inactive duty training (IDT). 

	b.  A Soldier may be separated with severance pay if his or her disability is rated at less than 30%, he or she has less than 20 years of service as defined in 10 USC 1208, and their disability occurred in the line of duty, and is the proximate result of performing active duty or IDT.  

	c.  The Soldier may forfeit severance pay; be transferred to the Retired Reserve; and receive non-disability retired pay at age 60, under the provisions of Title 10, USC, section 12731, if the Soldier has completed at least 20 qualifying years of service for retirement and a transfer to the retired Reserve is requested. 

	d.  According to the provisions of Title 10, USC, sections 1209 and 1213 all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay.

	e.  The U.S. Army Human Resources Command will notify Soldiers processing for disability under this regulation of their options and of the conditions contained above.  The letter will provide sufficient detail (verified years of active service for severance pay and Reserve years of service for retirement) to assist the Soldier to reach an informed decision.  An election once made is final and conclusive and may not be changed. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be issued a 15-Year letter in order to be eligible to receive non-regular retired pay at age 60 in lieu of the severance pay he has already received.  

2.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  However, a member of the Selected Reserve of a RC who is medically disqualified for continued service in a RC due to disability not incurred in line of duty may be considered as having met the service requirement and may be issued a notification if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 

3.  The evidence of record in this case confirms the applicant entered active duty on 1 February 2005.  He suffered a line of duty injury while on active duty in January 2006.  The injury rendered him physically unfit and was determined to have prevented him from performing the duties required of his grade and specialty.  He underwent an MEB that referred him to a PEB.  The PEB recommended his discharge with entitlement to severance pay.  He was appropriately counseled of his rights, concurred with the PEB's findings and recommendations, and waived his right to a formal hearing of his case.  He was discharged by reason of disability and received $60,658.20 in severance pay.

4.  The law with respect to non-regular retirement is clear.  In order to receive retired pay at age 60, a Soldier must have completed 20 qualifying years.  The law also makes a special rule for members who completed at least 15 but less than 20 years.  If a member no longer meets the qualifications for membership in the Selected Reserve because of unfitness due to physical disqualification, the member may be issued a 15-year letter.  However, this option is available only in those cases where a physical disability is not incurred in line of duty.  Soldiers in such situations do not undergo an MEB or PEB for rating and/or compensation. 

5.  The applicant's injury clearly occurred while on active duty while he was entitled to basic pay.  This necessitated his entry into the PDES, consideration by an MEB and PEB, and ultimate rating that resulted in his discharge with entitlement to severance pay.  Regardless of whether he was counseled properly or not, the option of a 15-year letter is not available to him.   He was compensated in the form of severance pay.  Had his injury been rated at 30% or higher, he would have been authorized retirement.  

6.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20100016872



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ABCMR Record of Proceedings (cont)                                         AR20100016872



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