IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100019406 


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 records be corrected so that he may receive retired pay at age 60.  Additionally, he requests, in effect, termination of his Survivor Benefit Plan (SBP).

2.  He states he was not counseled that receiving separation pay would not allow him to receive retired pay at age 60.

3.  He provides the following:

* Honorable Discharge Certificate
* Orders 201-11, dated 21 October 1991
* Orders 185-2, dated 26 September 1991
* Orders 11-3, dated 3 May 1985
* Orders 71-13, dated 6 April 1983
* Certificate of Marriage
* Certificate of Training, dated 9 July 1971
* Certificate of Birth
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* memorandum, dated 16 September 1991, subject:  Separation for Physical Disability
* message, dated 16 September 1991, subject:  Enlisted Disability Separation/Reserve
* 
Notification of Eligibility for Retired Pay at Age 60, dated 19 June 1991
* DD Form 108 (Application for Retired Pay Benefits) with DD Form 2656 (Data for Payment of Retired Personnel), dated 16 August 2008
* U.S. Army Human Resources Command (HRC)-St. Louis letter, dated 4 March 2010, with applicant's response, dated 16 June 2010
* Certificate of Divorce, dated 14 December 2009
* DD Form 1883 (SBP Election Certificate), dated 25 June 1991, with spouse waiver
* Department of Veterans Affairs (VA) correspondence

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 enlisted in the Massachusetts Army National Guard (ARNG) on 8 February 1971.  His date of birth is listed as 14 May 1950.  On 12 April 1983, he was ordered to active duty in an Active Guard Reserve status in the Massachusetts ARNG under Title 32, U.S. Code, section 502f.

3.  On 19 June 1991, he was notified of his eligibility for retired pay upon application at age 60 (20-year letter).

4.  On 25 June 1991, he completed a DD Form 1883 which shows he elected Reserve Component (RC) SBP coverage for spouse only, option C (Immediate Coverage), at the full rate.  The DD Form 1883 states, "IMPORTANT:  The decision you make with respect to participation in the Survivor Benefit Plan is a permanent irrevocable decision."

5.  His physical evaluation board (PEB) proceedings were not contained in his available records.  However, a memorandum, dated 16 September 1991, and an HRC message verified his PEB proceedings were approved.  The message further stated to issue orders discharging him immediately from the Reserve with a disability rating of 10 percent.  The effective date of his discharge was listed as no later than 30 September 1991.

6.  His DD Form 214 shows he was honorably discharged from active duty on 30 September 1991 for physical disability with severance pay.

7.  His NGB Form 22 shows he was honorably discharged from the ARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Retired) on 30 September 1991.  The authority and reason are listed as Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(3), and National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27v.  Massachusetts ARNG Orders 201-11, dated 21 October 1991, show he was assigned to the USAR Control Group (Retired Reserve) effective 30 September 1991.

8.  His honorable discharge certificate shows he was discharged from the Massachusetts ARNG on 30 September 1991.

9.  A letter from the VA, dated 25 August 1992, stated his claim for disability compensation had been approved for a monthly rate of $151.00 effective 1 November 1991 and $157.00 effective 1 December 1991.  The letter further stated the award was subject to recoupment of $28,176.10 in severance pay he received; specifically, "Each month $157.00 will be withheld until the full amount of your severance pay has been recovered."  The Compensation and Pension Veteran Information document indicates a check in the amount of $230.00 was issued to the applicant.  This document also indicates he was awarded $218.00 effective 1 December 2005, $225.00 effective 1 December 2006, and $230.00 effective 1 December 2007.  This document was printed on 14 May 2008.

10.  On 16 August 2008, he applied to HRC-St. Louis for retired pay benefits at age 60.  Section III (Separation Payment Information) of his DD Form 2656 shows he listed he had received severance pay in the amount of $28,176.10.

11.  On 8 December 2009, the applicant divorced.  A complete copy of his divorce decree was not provided.  However, in a notarized statement, dated 15 July 2009, his ex-wife waived her rights and interest to his SBP in which he elected option C.

12.  On 4 March 2010, the Chief, Transition and Separations Branch, 
HRC-St. Louis, responded to his application for retired pay benefits.  He said based on the applicant's admission that he received separation pay in the amount of $28,176.10, he was not qualified for retired pay.  Therefore, his application was returned to him for his records.

13.  On 10 March 2010, he requested reconsideration of his application for retired pay.  He said he was never advised that receipt of separation pay precluded his eligibility for retired pay at age 60.  He added if he had known this information, he would not have accepted the separation pay.  He explained that he was informed by VA in October 1991 that in order to receive VA disability payments, the $28,176.10 would have to be recouped.  He said he received his first check from VA in December 2005 with a letter stating the VA recouped all the money and he would receive a check every month.

14.  Army Regulation 635-40 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

15.  Army Regulation 635-40 states that when a Soldier has a rating of less than 30 percent and has at least 20 qualifying years for retirement for Nonregular service, "You have the option of accepting discharge with disability severance pay and forfeiting retirement for Nonregular service or you may request transfer to the Retired Reserve and receive retired pay at age 60.  According to Title 10, U.S. Code, sections 1209 and 1213, you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve."

16.  Army Regulation 635-40 states the findings and recommendations of the informal PEB are recorded on a DA Form 199 (PEB Proceedings).  Appendix D provides instructions for completing this form.  In item 13 (Election of Member) the Soldier will complete this block by placing a checkmark in the appropriate block indicating his or her elections after the informal findings and recommendations and sign and date the form.  The legal counsel or PEB Liaison Officer (PEBLO) who informs the Soldier of the PEB's findings and recommendations and his available options will sign item 14 (Counselor's Statement).

17.  Army Regulation 635-40 states the PEBLO will counsel each Soldier (or the next-of-kin or legal guardian, when appropriate) throughout physical disability processing.  Counseling will be based on the individual circumstances of each case and will be designed to serve the Soldier's best interest.  Answers to questions about medical evaluation board and PEB procedures will be provided in detail.  The PEBLO must reassure the Soldier that counseling will continue as needed as the case progresses within the disability system.  Soldiers should be encouraged to ask questions during case processing.  All Soldiers should be advised of benefits and training provided by the Department of Veterans Affairs, Department of Labor, and Social Security Administration.

18.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Changes in SBP options are not authorized except in specific instances as authorized by law.

19.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received his 20-year letter on 19 June 1991.  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.

2.  Although the applicant's PEB proceedings were not available to the Board for review, an HRC message verifies he received a 10-percent disability rating.  Additionally, the message stated to issue orders discharging him immediately from the Reserve.  Further, by his own admission and VA's verification, he received $28,176.10 in severance pay.  However, his NGB Form 22 shows he was transferred to the Retired Reserve instead.

3.  The evidence of record confirms his processing through the Army's Physical Disability Evaluation System ultimately led to his discharge from active duty by reason of physical disability with severance pay on 30 September 1991 as evidenced by his DD Form 214.  The record further shows in October 1991 he applied for and received disability payments through VA that were applied towards recoupment of the $28,176.10 he received in severance pay.  This debt to the government has since been repaid.

4.  The evidence of record confirms he was originally eligible to elect Nonregular retirement instead of separation with severance pay at the time of his disability separation in 1991.  It appears he may not have fully understood his options and/or been given the opportunity to elect receipt of retired pay in lieu of disability severance pay.

5.  The evidence of record further shows he was assigned to the USAR Control Group (Retired Reserve) from the ARNG in his separation orders as well as on his NGB Form 22.  Since he was originally eligible for retired pay at age 60, has repaid his severance pay, and his orders and NGB Form 22 assigned him to the Retired Reserve, it would be appropriate and serve the interest of justice and equity to correct his record by voiding his 30 September 1991 disability discharge with severance pay and to show he was transferred to Retired Reserve on that same date.

6.  Further, he should be provided all back retired pay due from 14 May 2010, minus any severance pay or retired pay that may not have been previously collected.

7.  In regard to termination of his RCSBP, the evidence of record shows he elected spouse coverage full rate, immediate coverage on 25 June 1991.  His DD Form 1883 informed him that his RCSBP election was an irrevocable decision.  In a notarized statement, his former wife waived her rights and/or interest in his SBP.

8.  Since he was ineligible for retired pay due to receipt of severance pay, it would not be fair at this time to make him pay past premiums for an insurance plan that would never have paid benefits.  Therefore, his RCSBP election will be amended to show he deferred the decision until age 60, at which time he declined coverage.


BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined 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:

	a.  voiding his 30 September 1991 disability discharge and showing he was instead transferred to the Retired Reserve on that same date,

	b.  showing his application for retired pay was accepted and processed in a timely manner,

	c.  showing he deferred his RCSBP election to age 60 at which time he declined enrollment in the standard SBP, and

	d.  providing him all back retired pay due from 14 May 2010, 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)                                         AR20100019406



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ABCMR Record of Proceedings (cont)                                         AR20100019406



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