IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100026196 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty), item 28 (Narrative Reason for Separation) to show he elected retirement at age 60 in lieu of "Disability, Severance Pay."

2.  The applicant states, in effect, he served his country for over 35 years.  He suffered a medical condition that warranted a medical evaluation board (MEB) which referred him to a physical evaluation board (PEB).  The PEB recommended that he be discharged with entitlement to severance pay.  He also received retirement orders at age 60 and started collecting retired pay.  However, his retirement orders were later revoked.  The Defense Finance and Accounting Service (DFAS) told him he would have to pay back the severance pay in the form of a miscellaneous debt and have his records corrected to show he elected to retire to get his retirement benefits reinstated. 

3.  The applicant provides:

* DD Form 214
* Notification of Eligibility for Retired Pay at Age 60 (20 year letter)
* Discharge Orders 138-0202
* Retired Pay Orders P01-780161 
* Revocation of Retired Pay Orders P01-780161R
* Retiree Account Statement
* DA Form 199 (PEB Proceedings), formal

4.  He also submitted copies of his previous application to this Board which included the above documents and the following documents:

* Reassignment Orders C-01-600428 
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* Line of Duty Investigation and Allied Documents
* DA Form 2-1 (Personnel Qualification Record)
* Mobilization orders and various amendments
* Various Leave and Earnings Statements
* DA Form 705 (Army Physical Fitness Test Scorecard)
* DA Form 2648 (Preseparation Counseling Checklist)
* Attachment Orders 254-26
* Disability Election Statement
* DA Form 5890-R (Acknowledgement of Notification of Formal PEB Hearing)
* DA Form 5893-R (PEBLO (PEB Liaison Officer) Counseling Checklist/Statement)
* DA Form 5892-R (PEBLO Estimated Disability Compensation Worksheet)
* Commander's performance statement
* MEB Narrative Summery (NARSUM) and Addendum
* Various medical documents, chronological records of medical care, 
X-rays, consults, charts, referrals, reports of medical history, and other medical reports
* DA Form 3349 (Physical Profile)
* National Guard Bureau (NGB) Form 23 (Retirement Credits Record) 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 22 January 1947 and initially enlisted in the Texas Army National Guard (ARNG) on 3 September 1969.  He served through multiple extensions or reenlistments in military occupational specialty (MOS) 11B (Infantryman), MOS 96B (Intelligence Analyst), and MOS 18D (Cavalry Scout).  

2.  On 12 May 1990, the U.S. Army Reserve Personnel Center (later known as the U.S. Army Human Resources Command (HRC), St. Louis, MO, issued the applicant his 20-year letter.  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

3.  On 18 October 2001, he was ordered to active duty in support of Operation Iraqi Freedom.  He was initially assigned to the 321st Military Intelligence Battalion, Fort Hood, TX, and on 3 September 2003, he was assigned to the 4003rd Garrison Support Unit, Fort Hood, for medical purposes. 

4.  He enlisted in the U.S. Army Reserve (USAR) on 31 January 2005 and also served through multiple extensions or reenlistments and attained the rank/grade of command sergeant major (CSM)/E-9.  

5.  In January 2005, he complained of mechanical low back pain.  He underwent various medical examinations, x-rays, evaluations, and other tests.  His NARSUM shows he was diagnosed with spinal stenosis and facet arthropacy.  He was determined not to have met retention standards and he was referred to the Army physical disability evaluation system (PDES).

6.  On 8 February 2005, an MEB convened at Darnall Army Community Hospital, Fort Hood, TX, and after considering his clinical records, laboratory findings, and physical examinations, the MEB found the applicant's stenosis and facet arthropacy and obstructive sleep apnea syndrome to be unacceptable.  The MEB recommended he be referred to a PEB.  He agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.

7.  On 31 March 2005, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to chronic subjective low back pain and mild obstructive sleep apnea.  He was rated under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) and assigned code 5238 (low back pain) and granted a 10% disability rating.  He was also assigned code 6847 (sleep apnea) and granted a 0% disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The applicant elected not to concur with the PEB's findings and recommendations and requested a formal hearing.

8.  On 27 April 2005, a formal PEB convened at Fort Sam Houston, TX, and again found his condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to chronic subjective low back pain.  The PEB considered his sleep apnea but did not find it unfitting.  

	a.  the PEB rated him under the VASRD and he was assigned code 5238 (low back pain) and granted a 10% disability rating.  The PEB again recommended that he be separated with entitlement to severance pay if otherwise qualified.  
	b.  the PEB also noted the applicant had a rating of less than 30% and at least 20 qualifying years of service for Reserve retirement under the provisions of chapter 67 of Title 10, U.S. Code (USC); therefore, he had the option of accepting disability severance pay and forfeiting his Reserve retirement pay, or he had the option of requesting a transfer to inactive Reserve status and receiving Reserve retired pay at age 60. 

	c.  the applicant concurred with the findings and recommendations of the formal PEB on 27 April 2005.

9.  Subsequent to his concurrence, the U.S. Army Physical Disability Agency (USAPDA) notified him by separate correspondence that once his case had been finalized by this agency and by DFAS, his election was final and conclusive for all purposes and may not be changed thereafter.  It was highly suggested that he give the matter full consideration prior to returning his election.

10.  On 29 April 2005, he elected to be discharged with entitlement to severance pay pursuant to the authority of section 1212, Title 10, USC.  He acknowledged he fully understood his election was final and conclusive for all purposes and his election could not be subsequently changed. 

11.  On 24 May 2005, he was honorably discharged under the provisions of paragraph 4-24b(3), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with severance pay.  The DD Form 214 he was issued shows he received $125,560.80 in severance pay. 

12.  On 6 January 2006, HRC-STL published Orders C-01-600428 ordering the applicant's reassignment to the Retired Reserve.

13.  On 9 January 2007, HRC-STL published Orders P01-780161, retiring him in the rank of CSM/E-9, effective 22 January 2007, on his 60th birthday.  However, on 2 July 2007, HRC-STL revoked his non-regular retirement orders after it was discovered he had been discharged from active duty with severance pay.

14.  On 4 August 2008, by letter, a DFAS official notified the applicant's Member of Congress that the applicant met the requirements for a military retired pay at age 60; however, he had received severance pay and by law he could not receive both.  The Member of Congress was also advised that the applicant had been placed on the retired rolls, he had received retired pay from February to July 2007; however, the retirement orders had been revoked and the retired pay 

had been suspended.  The applicant was not considered retired nor was he listed as active duty.  He was also not eligible for concurrent retirement or disability pay.

15.  On 15 September 2009, he petitioned this Board for an increase in his disability rating from 10% to 30% so that he would be eligible for retirement benefits, reinstatement of retired pay, and he could pay off his disability severance pay debt.  In his rebuttal to the advisory opinion obtained from the USAPDA in the processing of his case, he stated he wanted to be placed on the temporary disability retired list for the period 24 May 2005 (the date of discharged from active duty) to 22 January 2007 (the date he turned age 60).  On 13 July 2010, the Board denied his request.

16.  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.  

	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, USC, 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 USAPDA, HRC will issue retirement orders or other disposition instructions as follows:

* Permanent retirement for physical disability (10 USC 1201 or 1204)
* Placement on the TDRL (10 USC 1202 or 1205)
* Separation for physical disability with severance pay (10 USC 1203 or 1206)
* Separation for physical disability without severance pay (10 USC 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 (10 USC 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 (10 USC section 1207)
* Release from active duty and return to retired status of 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

17.  Title 10, USC, 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%.

18.  Title 10, USC, 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 percent 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.

19.  Title 10, USC, 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 evidence of record shows after his entry on active duty, the applicant sustained a medical condition.  He was seen by various medical specialists and recommended for entry into the PDES.  He underwent an MEB which recommended that he be considered by a PEB.  The PEB found his medical condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay.  He did not concur.
2.  A formal PEB convened and again found his medical condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay.  He concurred.

3.  Further, the PEB notified him that he had the option of accepting his discharge with disability severance pay and forfeiting retirement for non-regular service; or he could request a transfer to the Retired Reserve and receive retired pay at age 60.  By law, he would forfeit all rights to retired pay if he accepted severance pay instead of a transfer to the Retired Reserve.

4.  Additionally, prior to completing his election statement, the USAPDA again informed him by separate correspondence that once that agency and DFAS finalized his case his election was final and conclusive for all purposes and the election could not be changed thereafter.  It was highly suggested that he give this matter full consideration prior to returning his election.

5.  He elected the severance pay.  Accordingly, he was honorably discharged on 24 May 2005 under the provisions of paragraph 4-24b(3), Army Regulation
635-40 due to disability with severance pay.  The DD Form 214 he was issued shows he received $125,560.80 in severance pay.  

6.  The applicant's physical disability processing was conducted in accordance with applicable law and regulations and the applicant concurred with the PEB's recommendation.  There is no error or injustice in this case.  Therefore, in view of the foregoing evidence, 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)                                         AR20100026196



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ABCMR Record of Proceedings (cont)                                         AR20100026196



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