BOARD DATE:	29 September 2011  

		DOCKET NUMBER:  AR20110001278 


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, amendment of the orders discharging him from the U.S. Army Reserve (USAR) with severance pay to show he was transferred to the Retired Reserve. 

2.  He states he was informed during the process of his release from active duty (REFRAD) that he did not qualify for transfer to the Retired Reserve even though he had requested and received his 20-year letter.  He was told by a clerk that he didn't have a choice and had to take severance pay.  If he didn't take severance pay, he couldn't apply for disability with the Department of Veterans Affairs (VA).  He believes he was misinformed of his options.  Even though he asked to be sent to the Retired Reserve, he was given severance pay.

3.  He provides:

* a DD Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* a memorandum from the U.S. Army Human Resources Command (AHRC)
* discharge orders
* his 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 Army National Guard (ARNG) on 13 July 1983 and served through 12 July 1998.  On 13 July 1998, he enlisted in the USAR where he served until he was honorably discharged on 30 October 2004.

3.  The applicant's record in the interactive Personnel Electronic Records Management System (iPERMS) does not include documentation of his discharge processing.  

4.  He provides a DA Form 199 showing, on 25 May 2004, a PEB found him 10 percent (%) disabled for low back pain and 10% disabled for chronic neck pain.  The PEB found him physically unfit, recommended a combined disability rating of 20%, and recommended his separation with severance pay if otherwise qualified.  

5.  On 14 June 2004, he concurred with the PEB findings and recommendations and waived a formal hearing of his case.  The DA Form 199 shows the handwritten note "I request transferred [sic] to the Retired Reserve."  

6.  On 31 August 2004, the U.S. Army Reserve Personnel Command issued a 20-year letter to him informing him he had completed the required years of qualifying service to receive retired pay at age 60.

7.  He provides the first page of a memorandum, dated 6 October 2004, from AHRC to the Commander, Transition Center (TC), Fort Buchanan, PR, that shows a request for REFRAD was approved based on the PEB findings.  

	a.  AHRC notified the TC he had accumulated more than 20 years of qualifying service for retirement and had been issued his 20-year letter.  AHRC stated the Separation Program Designator (SPD) code [on his DD Form 214] would be "LBK" based on completion of required active service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4.  

   b.  AHRC directed the TC to enter the following statement in item 18 (Remarks) of his DD Form 214:  "The Soldier has been separated by reason of physical disability and has elected Reserve Retirement In-Lieu of Severance; No Severance Pay is Authorized."
   
   c.  AHRC further specified that severance pay was not authorized to be paid to the applicant by the TC or his parent command.  The memorandum shows he was to be separated and transferred to the USAR Control Group (Retired).  

8.  He provides Orders 301-0100, issued by Headquarters, United States Army Garrison, Fort Buchanan, PR, dated 27 October 2004.  The orders discharged him from the USAR effective 30 October 2004 under the provisions of Army Regulation 635-40 and show he was authorized disability severance pay in pay grade staff sergeant/E-6 based on 6 years, 1 month, and 27 days of service.  

9.  He provides a DD Form 214 showing he served on active duty in support of Operation Enduring Freedom from 2 January 2003 until his honorable discharge on 30 October 2004.  The DD Form 214 shows in:

* item 9 (Command to which Transferred) - "NA"
* item 18 (Remarks) - "Service member separated by reason of physical disability severance amount unknown"
* item 23 (Type of Separation) - "Discharge"
* item 25 (Separation Authority) - "[Army Regulation] 635-40, PARA 
4-24B(3)"
* item 26 (Separation Code) - "JFL"
* item 27 (Reentry Code) - "NA"
* item 28 (Narrative Reason for Separation) - "Disability, severance pay"

10.  In an e-mail received during the processing of the case, the applicant indicated he understood that the amendment of orders he has requested will require recoupment of the severance pay he received.  He stated, in effect, his severance pay is already being recouped from his VA disability payments.

11.  Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It provides the rules governing the PEB process.  It states, in pertinent part, a PEB will include an advisory statement on the DA Form 199 informing the Soldier of legal or administrative requirements that impact on the Soldier’s disability benefits in certain situations.  When a Soldier has a rating of less than 30 percent and has at least 20 qualifying years for retirement for nonregular service, the following statement will be entered on the DA Form 199: “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, United States Codes, Sections 1209 and 1213, (10 USC 1209 and 1213), you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve.”

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 states Soldiers will be separated upon expiration of enlistment or fulfillment of service obligation.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states for item 27 to enter the appropriate type of separation from the list below:  

* Release from active duty
* Discharge
* Retirement
* Release from active duty and order to active duty in another status
* Release from ADT
* Release from custody and control of the Army
* Release from ADT and discharge from the Reserve of the Army and return to the ARNG

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states Soldiers separated under the provisions of Army Regulation 635-200, chapter 4, will be assigned SPD code "LBK" and the narrative reason for separation will be "completion of required active service."

15.  The SPD/Reentry (RE) Code Cross-Reference Table provides instructions for determining the RE code for active Army Soldiers and Reserve Component Soldiers.  This cross-reference table shows the SPD codes and corresponding RE codes.  The table in effect at the time shows the SPD code of "LBK" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was notified he had completed 20 qualifying years for retirement for nonregular service after his case was reviewed by a PEB.  This may explain why the PEB did not include an advisory statement on the DA Form 199 informing him of his right to transfer to the Retired Reserve.  He did, however, handwrite a statement requesting transfer to the Retired Reserve on the form. 

2.  AHRC provided clear instructions regarding the transfer of the applicant to the Retired Reserve.  For reasons that are not clear in the available records, the TC did not comply with the instructions.  

3.  The governing law and regulation clearly state a USAR Soldier with 20 years of qualifying service for retired pay may, upon being found unfit for further service, request transfer to the Retired Reserve.  The applicant did so, and it appears his request was improperly denied.  Once an eligible Soldier has made such a request, there is no statutory or regulatory basis for denying it.  Accordingly, it would be appropriate to revoke the orders discharging him from the USAR and publish new orders transferring him to the Retired Reserve effective 30 October 2004.  

4.  These changes will require recoupment of the severance pay he received.  He has acknowledged this requirement.

5.  AHRC published instructions for preparing his DD Form 214, which, for reasons that are not clear in the available records, were not followed by the TC.  It would also be appropriate to correct his DD Form 214 to conform with AHRC's directions and to show he was transferred to the USAR Control Group (Retired). 

BOARD VOTE:

___x____  __x_____  __x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  revoking the orders discharging him from the USAR; 

	b.  publishing orders releasing him from active duty and transferring him to the Retired Reserve effective 30 October 2004; 

	c.  recouping the severance pay he received;

	d.  deleting the entries in items 9, 23, 25, 26, 27, and 28 of his DD Form 214;

	e.  deleting the entry " Service member separated by reason of physical disability severance amount unknown" from item 18 of his DD Form 214; and

	f.  adding to his DD Form 214 in:

* item 9 - "USAR Control Group (Retired)"
* item 18 - "The Soldier has been separated by reason of physical disability and has elected Reserve retirement in lieu of severance; no severance pay is authorized."
* item 23 - "Release from active duty"
* item 25 - "AR 635-200, Chapter 4"
* item 26 - "LBK"
* item 27 - "3"
* item 28 - "Completion of required active service"



      __________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)                                         AR20110001278





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ABCMR Record of Proceedings (cont)                                         AR20110001278



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