IN THE CASE OF:	  

		BOARD DATE:	 9 June 2011 

		DOCKET NUMBER:  AR20100023001 


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 permanent physical disability be removed from his military records and that he be granted a 20-year retirement.  

2.  He states he:

* received severance pay in 1998 and was granted permanent physical disability
* has paid back all of the severance pay that he received through the Department of Veterans Affairs (VA)
* thought he could apply for retirement, receive retired pay, and an identification card once he paid back the severance pay
* served over 18 years before he had a heart attack in 1995
* he would have retired as an infantry platoon sergeant, but his career was cut short

3.  He provides:

* letter from the U.S. Army Physical Evaluation Board (PEB) 
* DA Form 199 (PEB Proceedings)
* rebuttal to Medical Evaluation Board (MEB)
* discharge orders
* orders removing him from the temporary disability retired list (TDRL)
* Honorable Discharge Certificate
* Certificate of Retirement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
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 enlisted in the Regular Army on 6 July 1978.  

3.  On 15 March 1996, he was evaluated by an MEB and he was diagnosed with the following conditions:

* status post acute inferior myocardial infarction
* status post angioplasty of the right coronary artery
* status post acute pancreatitis complicated by a pseudocyst
* resolution of pseudocyst
* possible mass in the head of the pancreas

4.  He agreed with the MEB’s findings and recommendation and he was referred to a PEB.  

5.  On 18 June 1996, an informal PEB found him unfit for status post acute inferior myocardial infarction and status post angioplasty of the right coronary artery with atherosclerotic coronary artery disease with a New York Heart Association Class II.  His MEB diagnoses 3 through 5 and Addendum, dated 23 May 1996, were determined not unfitting and not ratable.  The PEB recommended a combined disability rating of 30 percent (%) and that he be placed on the TDRL with reexamination on or about 1 December 1997.  He didn’t concur with the PEB findings, demanded a formal hearing with a personal appearance, and regularly appointed counsel.  

6.  He submitted a rebuttal to the MEB on 31 July 1996.  He argued that:

* all of his records and documents were not submitted to the MEB
* his medical conditions were permanently aggravated by his service
* his weight had increased since his heart attack and he no longer had the ability to perform exercises
* he was constantly on medications
* he deserved more disability due to his condition

7.  On 6 September 1996, he withdrew his request for a formal PEB.  

8.  Orders published on 24 September 1996 released him from active duty on 
28 October 1996 due to a physical disability that was incurred while entitled to basic pay.  On the following day, he was placed on the TDRL in the rank of sergeant first class/E-7.  He completed 18 years, 3 months, and 23 days of net active military service.  

9.  He was reexamined in January 1998.  

10.  On 23 March 1998, an informal PEB found him unfit due to status post acute myocardial infarction and status post angioplasty right coronary artery with normal treadmill with a maximum workload of 10 mets.  The PEB recommended that he be separated with a 10 percent disability rating.  The PEB considered the proper disposition to be separation with severance pay.  “Ratings of less than 30% [percent] for Soldiers with less than 20 years of service require separation with severance pay in lieu of retirement."  On 30 March 1998, he signed the PEB proceedings and did not concur with the PEB findings.  He demanded a formal hearing of his case with a personal appearance.  

11.  Orders published on 16 April 1998 show he was removed from the TDRL and he was discharged from the service on 16 April 1998 because of a permanent physical disability.  These orders show he was entitled to severance pay with a 10% disability rating.  

12.  References:  

   a.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating.  

   (1)  Chapter 7 outlines procedures for administration and processing of 
Soldiers whose names are on the TDRL.  The regulation states that a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired.  Medical examiners and adjudicative bodies will carefully evaluate each case.  

   (2)  Paragraph 7-4 states that a Soldier will be removed from the TDRL 
and separated with severance pay if the Soldier has less than 20 years of service and is unfit because of the disability for which the Soldier was placed on the TDRL and either the disability has stabilized at less than 30 percent or the disability, although not stabilized, has improved so as to be ratable at less than 30 percent.

   b.  According to Title 10, U.S. Code:

   (1)  Section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating 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 service and a disability rating at less than 30 percent.  

		(2)  Section 1212(c) states the amount of disability severance pay 
received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

   (3)  Section1213 states that, unless a person who has received disability 
severance pay again becomes a member of an armed force…he is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation, under any law administered by one of those services or for it by another of those services.  However, this section does not prohibit the payment of money to a person who has received disability severance pay, if the money was due him on the date of his separation or if a claim by him is allowed under any law.

   (4)  Section 3914 states that, under regulations to be prescribed by the 
Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30 years for an active Federal service retirement may, upon his request, be retired.  

   c.  Section 4403 of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102-484), enacted 23 October 1992, as amended, provided for a temporary early retirement authority during the force reduction transition for enlisted personnel on active duty.  The purpose of this legislation was to provide the Secretary of Defense with an additional temporary force management tool to affect the drawdown of forces.  Section 4403 of Public Law 102-484 amended Section 3914, Title 10, U.S. Code to allow early retirement of an enlisted member with at least 15 years but less than 20 years of service.  Further, this law defined the active force drawdown period as beginning on 23 October 1992 and ending on 1 October 1999.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was found unfit for active duty; he was released and placed on the TDRL on 29 October 1996.  At the time he had completed 18 years, 3 months, and 23 days of military service.  

2.  The available evidence shows he was removed from the TDRL on 16 April 1998 and discharged from the service on 16 April 1998 due to permanent physical disability with severance pay.  

3.  His contention that he has paid back all of the severance pay has no bearing on his request.  However, the repayment of the severance pay may have been a VA requirement to be eligible for monetary compensation from the VA.  

4.  A provision of the law (Title 10, U.S. Code, section 1213) states unless a person who has received disability severance pay again becomes a member of an armed force…he is not entitled to any payment from the Armed Forces from which he was separated for, or arising out of, his service before separation, under any law administered by one of those services or for it by another of those services.  Since he is no longer a member of the Armed Forces, he is not eligible to receive retired pay.  

5.  The evidence shows he did not complete a minimum of 20 years of active service; therefore, he was not eligible for voluntary retirement due to length of service.  

6.  Therefore, there is no basis for granting 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)                                         AR20100023001



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ABCMR Record of Proceedings (cont)                                         AR20100023001



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