IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100025246 


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, in effect, correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he elected retirement at age 60 in lieu of "Disability, Severance Pay" or reimbursement of the severance pay he repaid the Department of Veterans Affairs (DVA).

2.  The applicant states he was discharged under the provisions of Army Regulation 635-40 by reason of physical disability with severance pay.  When he was separated he was under a doctor's care at Wright Patterson Air Force Base, Dayton, OH and he was on mind-altering medication.  He contends he was never advised of his rights and never saw legal counsel.  Further, he contends he has received conflicting information reference his eligibility for retirement but his understanding is that if the severance pay he received upon his discharge was repaid then he would be eligible for retirement pay.  He is willing to pay the income taxes in order to receive his retired pay.  He states his DA Form 4928-R (Refund of Readjustment/Separation/Severance Pay), dated 12 November 1996, clearly states he is entitled to retirement pay.

3.  The applicant provides 18 documents of evidence that are listed on the continuation sheet of his DD Form 149 (Application for Correction of Military Record).



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 was inducted into the Army of the United States on 25 March 1969, was released from active duty on 1 November 1970 and transferred to the U.S. Army Reserve, and subsequently enlisted in the USAR on 25 March 1971 and continued to serve in that status.  He entered active duty on 8 May 1988.

3.  On 22 February 1992, he received Notification of Eligibility for Retired Pay at Age 60 (commonly known as the 20-year letter).  This letter notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

4.  Neither the applicant's medical records nor the complete facts and circumstances of his physical disability evaluation system processing were available for review.  However, the applicant provides page one of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) which show he received the board proceeding on 25 March 1996 by fax.  The form shows the PEB found him physically unfit and recommended:

* a combined rating of 30 percent (%)
* retention on the temporary disability retired list (TDRL) with reexamination during 1 September 1997

5.  On 11 September 1996, the U.S. Total Army Personnel Command, Chief, Physical Disability Branch, notified him that the findings of his Physical Evaluation Board (PEB), which convened on 22 May 1996, were approved and informed the applicant that because he had completed at least 20 years of Federal service he was eligible for retirement at age 60.  He was instructed that he had to make an election to transfer to the Retired Reserve or be discharged with entitlement to receive disability severance pay and return the election form within 3 weeks.  In addition, the letter states his election is final and conclusive for all purposes and may not be changed thereafter.  It was suggested that he give the matter full consideration prior to returning his election.  

6.  U.S. Army Reserve Personnel Center Orders D-10-800184, dated 24 October 1996, discharged the applicant from the USAR due to disability with a 10 percent disability rating.

7.  On 11 November 1996, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), due to disability with severance pay.  His
DD Form 214 shows he received $65,124.00 in disability severance pay.

8.  The record does not contain orders assigning him to the Retired Reserve; however, on 26 October 2009, the U.S. Army Human Resources Command (USARC), St. Louis, MO, revoked Orders Number P09-910554, dated
29 September 2009, pertaining to his placement on the Army of the United States (AUS) Retired List.

9.  The applicant provides miscellaneous financial documents relating to his retired pay account, disability severance pay, and Tri-Service Medical Care (TRICARE) eligibility.  Included in his evidence is a letter from the DVA, dated
4 May 2009, which shows he repaid his severance pay in the amount of
$51,308.52 (post taxes) and he is now entitled to receive his full service-connected compensation benefits from the DVA.

10.  The applicant provided a DA Form 4928-R, dated 12 November 1996, which states that, if at a future date, he qualified for receipt of length of service (20 years or more active duty) retired pay, he would be required to refund from such retired or retainer pay so much of such pay as is based on the service for which readjustment/separation/severance pay was received, until the total amount of readjustment/separation/severance pay is repaid.  Further, he would not be entitled to receive any retired pay until the required amount of readjustment/separation/severance pay to be refunded had been collected.

11.  During the processing of this case, an advisory opinion was obtained from the USAHRC, Reserve Retirement Component Branch.  After review the office was unable to make a determination as to whether the applicant was properly counseled or if his retirement should be reinstated.

12.  The applicant responded to the advisory opinion on 4 April 2011.  He contends he was not properly counseled because he received his PEB proceedings by fax and he was not present to sign his DD Form 214; therefore, there was no opportunity for him to receive such counseling.  In addition, he has over 26 years of active duty and Reserve service and he met the standards to receive USAR retirement.  However, he is not eligible for benefits, such as TRICARE, a military identification card, military life insurance, or retired pay even after he paid all the severance pay back.  His failure to be counseled represents an injustice.

13.  Army Regulation 138-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Components (RC) Soldiers.  It provides that for a Soldier or a former member of the RC to be eligible for retired pay, he/she need not have a military status at the time of application, but he/she must have attained age 60, completed a minimum of 20 years of qualifying service, and not have elected to receive disability severance pay in lieu of retired pay at age 60.

14.  Army Regulation 635-40 establishes the Army's 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/her office, grade, rank, or rating.  

	a.  Paragraph 4-19 (PEB decisions - common criteria) states the DA Form 199 will inform the Soldier of legal or administrative requirements that impact on the Soldier’s disability benefits in certain situations, such as when a Soldier has a rating of less than 30% and has at least 20 qualifying years for retirement for non-regular service:  "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular 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."

	b.  Paragraph 4-24 (Disposition by HRC) states based upon the final decision of the U.S. Army Physical Disability Agency (USAPDA), USAHRC will issue retirement orders or other disposition instructions as follows:

* Permanent retirement for physical disability (Title 10, U.S. Code, section 1201 or 1204)
* Placement on the TDRL (Title 10, U.S. Code, section 1202 or 1205)
* Separation for physical disability with severance pay (Title 10, U.S. Code, section 1203 or 1206)
* Separation for physical disability without severance pay (Title 10, U.S. Code, section 630, 12681, 1165, or 1169)
* Transfer Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer to the Inactive Reserve based on the Soldier’s request (Title 10, U.S. Code, section 1209)
* Separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence (Title 10, U.S. Code, section 1207)
* Release from active duty and return to retired status if retired (Soldiers serving on active duty who are found physically unfit)
* Return of the Soldier to duty when he or she is determined physically fit

15.  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%.

16.  Title 10, U.S. Code, section 1209 (Transfer to inactive status list instead of separation) 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 that his disability is less than 30% under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination, 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.

17.  Title 10, U.S. Code, section 1213 (Effect of Separation on Benefits and Claims) states unless a person who has received disability severance pay again becomes a member of an armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reinstatement of his retired pay or a refund of the severance pay recouped by the DVA because he did not receive proper counseling.

2.  As a point of clarification, at the time of his separation he was eligible to retire based on 20 or more qualifying years of Federal service which is not the same as 
a retirement based on 20 years of active Federal service.  The statement on the DA Form 4928-R he references is not applicable to his type of retirement.  Additionally, his 20-year letter only confirms that a Soldier has 20 or more qualifying years of service; other criteria must also be met.  These include having 
that the Soldier could not have received severance pay for physical unfitness.

3.  The complete facts and circumstances of his separation processing are not available for review.  The applicant provided only one page from his DA Form 199 and not his entire PEB proceedings.  However, the Chief, Physical Disability Branch notified him prior to his separation that because he had at least 20 or more years of federal service he must make an election to either transfer to the Retired Reserve or be discharged with entitlement to receive disability severance pay and that his election could not be changed.  His contention that he was not properly counseled is without merit.

4.  He was subsequently honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3), due to disability with severance pay.  He received $65,124.00 in severance pay.  It should also be noted that if relief was granted, he would have a debt to the U.S. Government for his severance pay, with interest, as a matter of law.

5.  Lacking his entire PEB proceedings and evidence to the contrary, the applicant was properly and equitably discharged in accordance with applicable regulations.  It is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  There is no error or injustice in this case.  

6.  In view of the foregoing, his request should be denied.

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)                                         AR20100025246



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ABCMR Record of Proceedings (cont)                                         AR20100025246



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