IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20110000919 


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 the narrative reason for his separation to show he was retired for disability.

2.  The applicant states he needs to have his discharge changed since he is trying to have his MGIB benefits converted to the post 9/11 MGIB.  A Department of Veterans Affairs (VA) counselor told him his disability should be annotated on his DD Form 214 (Certificate of Release or Discharge from Active Duty) in order to accomplish the conversion of educational benefits.  He previously underwent a medical evaluation board (MEB) that referred him to a physical evaluation board (PEB) which granted him a 10% disability rating.  Additionally, the VA awarded him an additional 10% service-connected disability compensation after separation. 

3.  The applicant provides the following documents:

* DD Form 214
* Air Force (AF) Form 618 (Medical Board Report) 
* DA Form 199 (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 23 October 1984 and held military occupational specialty 91T (Animal Care Specialist).  He served through multiple reenlistments and attained the rank/grade of staff sergeant (SSG)/E-6.

3.  The complete facts and circumstances that led to his illness or injury are not available for review.  However, he provided an AF Form 618, dated 28 June 2001, that shows after consideration of clinical records, laboratory findings, and physical examinations, he had the medically-unacceptable condition of lower back pain with sciatica and RPPS (Retropatellar Pain Syndrome) of the left knee. The MEB recommended he be referred to a PEB.  

4.  On 7 November 2001, an informal PEB convened at Fort Lewis, WA, 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 low back pain with sciatic complaints.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and was granted a 10% disability rating for code 5295.  The PEB also considered his other medical condition of RPPS and determined it was not separately unfitting therefore not ratable.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.

5.  The PEB also noted the applicant was eligible to apply for the Temporary Early Retirement Authority (TERA) Program, as an exception to policy, in lieu of separation for disability.  He was strongly encouraged to apply for retirement under TERA.  

6.  Although not available for review with this case, the applicant appears to have concurred with the PEB's findings and recommendations and submitted a request for early retirement under TERA.


7.  On 5 December 2001, the Military Personnel Service Center, Washington, DC, published Orders 339-04 releasing the applicant from active duty effective 31 December 2001 and placing him on the retired list in his retired rank/grade of SSG/E-6 effective 1 January 2002 by authority of section 4403 and 4464 of Title 10, U.S. Code (USC).  He was credited with 17 years, 2 months, and 8 days. 

8.  He was honorably retired on 31 December 2001.  The DD Form 214 he was issued shows he completed 17 years, 2 months, and 8 days of active service.  This form also shows:

* Item 25 (Separation Authority), erroneously listed the entry "Army Regulation 625-200, paragraph 5-18)
* Item 26 (Separation Code), erroneously listed "JFV"
* Item 28 (Narrative Reason for Separation), erroneously listed the entry "Physical Condition - Not a Disability"

9.  He submitted a copy of his undated VA rating decision that shows the VA awarded him a 10% service-connected disability rating for a herniated nucleus pulposis.

10.  Army Regulation 635-200, paragraph 5-17 (Not paragraph 5-18) states commanders who are special court-martial-convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, which includes those members suffering from a disorder manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  Members separated under this provision of the regulation will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.

11.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  The "JFV" SPD code is the correct code for Soldiers separating under chapter 5-17 of Army Regulation 635-200.  The "RBE" SPD code is the correct code for Soldiers retiring under a voluntary early retirement program  


12.  Title 10, USC, 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 fiscal year 2001 except for members who were recommended for discharge due to physical disability.

13.  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, USC, 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%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was medically retired for disability.

2.  The evidence of record confirms the applicant suffered a medical condition that warranted his entry into the Army physical disability evaluation system (PDES).  He underwent an MEB that referred him to a PEB.  The PEB rated his condition at 10% and recommended his separation with entitlement to severance pay.  Since his rating was less than 30%, he could not have been permanently retired by reason of disability.  

3.  TERA provisions of the law were applicable only to specific categories of personnel.  This included personnel who were processed through the PDES who received a disability rating of less than 30% from the PEB and who had completed at least 15 years but less than the 20 years of active duty service necessary to qualify for length of service retirement.  Since he had completed   17 years, 2 months, and 5 days of active military service at the time of his retirement, he qualified for TERA and appears to have requested it.  

4.  Although he is not entitled to correction of the narrative reason for separation to show medical retirement, his DD Form 214 contains administrative errors in that it does not reflect his early retirement under TERA and associated codes.  On reconsideration, the applicant may be entitled to correction of his DD Form 214 to show the proper authority, reason, and separation code.  


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)                                         AR20110000919





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ABCMR Record of Proceedings (cont)                                         AR20110000919



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