BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110009743 


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 that his retirement be changed so as to qualify him for  Concurrent Retirement and Disability Pay (CRDP).

2.  The applicant states the consequences of accepting permanent disability retirement was never explained to him.  He goes on to state he was never told that by accepting a disability retirement he would not be able receive his Reserve retirement.  He also states he was misled by Army experts and no other option was afforded to him on his retirement.  He was told not to worry because when he reached his 60th birthday he would start receiving his retired pay.  However, when he applied for his retired pay it was denied.  He continues by stating he is still under the care of two psychologists at the Department of Veterans Affairs (VA), and the doctors say he has a cognitive disorder.  He concludes by stating he did not know what he was signing and was told to just sign it.

3.  The applicant provides copies of his medical treatment records, five pages of handwritten explanations of his application, a letter of explanation from a Retired Marine Major, and numerous third-party statements. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 25 April 1951 and was serving in the U.S. Army Reserve (USAR) as a health care specialist in the pay grade of E-6 when he received his 20-year letter on 9 April 2003 advising him that he was eligible to receive non-regular retired pay at age 60 (25 April 2011).  He was promoted to the pay grade of E-7 on 1 November 2004.
2.  On 14 July 2004, he was ordered to active duty in support of Operations Noble Eagle and Iraqi Freedom and was transferred to Fort Bragg, North Carolina for duty.  He served until he was honorably released from active duty on 2 September 2005 due to completion of required service.

3.  On 3 September 2005, he was ordered to active duty to voluntarily participate in the Reserve Component Medical Retention Processing Program for completion of medical care and treatment.

4.  On 15 April 2007, he was placed on the Temporary Disability Retired List (TDRL).

5.  On 19 January 2010, a TDRL Physical Evaluation Board (PEB) convened at Fort Lewis, Washington.   The applicant was diagnosed as having a subarachnoid hemorrhage resulting from rupture of a cerebral aneurism in June 2004.  The board found that the applicant was unfit for duty and recommended he be retired with a 30% disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

6.  The applicant was removed from the TDRL on 3 February 2010 and on 4 February 2010 he was permanently retired by reason of physical disability with a 30% disability rating.

7.  The applicant’s chronological statement of retirement points shows he had       24 years, 7 months, and 19 days of qualifying service for retired pay purposes over a 32-year period

8.  The available records do not contain any of the documents related to his medical processing, his placement on the TDRL, or his removal from the TDRL and placement on the permanent retired list.

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30% disabling.

10.  Concurrent Retirement and Disability Pay (CRDP) allows military retirees to receive both military retired pay and VA compensation.  Individuals must be eligible for retired pay to qualify for CRDP.  If an individual was placed on a disability retirement, but would be eligible for military retired pay in the absence of the disability, he or she may be entitled to receive CRDP.  Under these rules, individuals may be entitled to CRDP if:

* They are a regular retiree with a VA disability rating of 50 percent or more
* They are a reserve retiree with 20 quaIifying years of service who have a VA disability rating of 50 percent or greater who have reached retirement age (age 60)
* Retired under the Temporary Early Retirement Act (TERA) and have a VA disability rating of 50% or greater
* Are disability retirees who earned entitlement to retired pay under any provision of law other than solely by disability and have a VA disability rating of 50 percent or greater; individuals may become eligible for CRDP at the time they would have become eligible for retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the applicant’s disability was properly rated in accordance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and he was assigned a disability rating of 30% for his unfitting conditions as they existed at the time of his formal PEB hearing.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army ratings become effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show that he was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB was incorrect.

4.  The applicant was retired by reason of physical disability and at the time he was processed for disability and placed on the TDRL in 2007 and permanently retired in 2010, he was not eligible for a non-regular retirement because he had not reached age 60.

5.  Therefore, at the time, the only retirement he was eligible for in 2007 and 2010 was the disability retirement he received, unless he agreed to waive his disability retirement at the time in order to later become eligible to receive a non-regular retirement at age 60, which in his case was April 2011.  

6.  Therefore, in the absence of evidence to show that he made an election to waive his disability retirement in order to receive a non-regular retirement at age 60, there appears to be no basis to grant his request to now change his disability retirement to a non-regular retirement in order to qualify for CRDP.

7.  However, once the applicant turned age 60, provided the VA granted him a disability rating of 50% or greater, it appears he would be eligible for CRDP.  He provides no evidence to show the VA has granted him a disability rating of 50% or greater but he has been turned down for CRDP.

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)                                         AR20110009743





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ABCMR Record of Proceedings (cont)                                         AR20110009743



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