BOARD DATE: 19 April 2011
DOCKET NUMBER: AR20100028826
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his disability rating.
2. The applicant states a medical evaluation board held on 11 November 2001 found him unfit for continued service and recommended his discharge/retirement due to a back injury he suffered while on active duty. He would like his DD Form 214 to show the proper disability rating at the time of his retirement.
3. The applicant provides his DD Form 214, dated 31 December 2001, and a DA Form 199 (Physical Evaluation Board (PEB) Proceedings).
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 Regular Army on 28 October 1985 and held military occupational specialty 67T (Helicopter Repairman). He served through multiple reenlistments and attained the rank of sergeant first class (SFC)/E-7 in November 1998.
3. The facts and circumstances surrounding his injury and/or his referral to the Army Physical Disability Evaluation System are not available for review. However, he provides a DA Form 199 that shows a PEB convened on 11 October 2001 at Fort Sam Houston, TX.
a. The PEB found his condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to chronic low back pain. The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities and he was granted a 10-percent disability rating. The PEB recommended the applicant be separated from the Army with entitlement to severance pay if otherwise qualified.
b. The applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing on 18 October 2001.
4. His DD Form 214 shows he was honorably retired on 31 December 2001 under a voluntary early retirement program. He completed 16 years, 2 months, and 3 days of creditable active service. This form also shows:
* item 23 (Type of Separation) "Retirement"
* item 25 (Separation Authority) "Army Regulation 635-200 (Personnel Separations), chapter 12"
* item 26 (Separation Code "RBE"
* item 27 (Reentry Code) "4R"
* item 28 (Narrative Reason for Separation) "Voluntary Early Retirement"
* item 18 (Remarks) "Member is retiring as provided by section 4403 of the Fiscal Year (FY) 1993 National Defense Authorization Act (NDAA) (Public Law 102-484)"
5. Public Law 102-484, NDAA FY93, provided the Secretary of Defense with a temporary additional force management tool with which to affect the drawdown of military forces. Subsection 4403(f) of the Act directs the use of a subaccount within the budget activities in the Active, Reserve and Guard Military Personnel Appropriations for retirement payments to members participating in the Temporary Early Retirement Authority (TERA) Program. Subject to the availability of appropriations for purposes set forth in section 4403, the Secretary of each Military Department shall provide for the payment of retired pay amounts beginning in FY93 to active service military members who retire up to 5 years before the completion of a 20-year period of service.
6. Title 10, U.S. Code, section 1315, provided TERA for the active force for the period 23 October 1992 through 31 December 2001. The Secretary of the Army could authorize a member with at least 15 but less than 20 years of creditable service a length of service retirement. The Army did not utilize this provision of the law during FY01 except for members who were recommended for discharge due to physical disability.
7. 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 percent. 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 of less than 30 percent.
8. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. It is important that information entered on the form should be complete and accurate. Chapter 2 of this regulation states to use extreme care in completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information. Item 18 of the DD Form 214 is used for Department of the Army mandatory requirements when a separate block is not available.
DISCUSSION AND CONCLUSIONS:
1. The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case. However, he provides a DA Form 199 that shows he was considered by a PEB that found him physically unfit and directed his separation with entitlement to severance pay. However, it appears he elected a voluntary early retirement under TERA.
2. His DD Form 214 appropriately shows he was retired on 31 December 2001 for the purpose of early retirement under TERA with a type of separation of "Voluntary Early Retirement"; a separation authority of "Army Regulation 635-200, chapter 12"; a separation code of "RBE" (voluntary early retirement under the provisions of Army Regulation 635-200, chapter 12 or other retirement programs); a reentry code of "4" (required for Soldiers separated by reason of retirement); and that he was placed on the Retired List in the rank and grade of SFC/E-7 effective 1 January 2002.
3. The PEB did not authorize his retirement. It only authorized him 10 percent severance pay. In any case, there is no provision to list the percentage of his disability on the DD Form 214 since he elected early retirement in lieu of severance pay. The applicant may use his DA Form 199 or this Record of Proceedings to confirm his disability percentage.
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 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) AR20100028826
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100028826
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