IN THE CASE OF:
BOARD DATE: 20 December 2011
DOCKET NUMBER: AR20110012981
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, to be credited with 20 years of qualifying service for retirement.
2. The applicant states he was forced out 5 months and 10 days prior to reaching 20 years and should have been retired with 20 years of service under the "round up" rule. He states he was a Reserve Soldier serving on active duty. He is only receiving retired pay for 16 years; however, his U.S. Army Reserve (USAR) Personnel Command Form 249-E (Chronological Statement of Retirement Points) shows he had 19 years, 6 months, and 20 days of qualifying service for retirement.
3. The applicant provides copies of his Chronological Statement of Retirement Points, DD Form 214 (Certificate of Release or Discharge from Active Duty), and retirement orders.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving as a USAR chief warrant officer four when he was ordered to active duty in support of Operation Iraqi Freedom on 7 December 2003. He deployed to Kuwait/Iraq from 14 January 2004 to 14 January 2005.
2. On 14 September 2006 after undergoing a physical evaluation board (PEB), he was placed on the Temporary Disability Retired List (TDRL). He was 51 years of age at the time he was placed on the TDRL.
3. On 4 April 2011, a PEB convened at Fort Sam Houston, Texas, and determined the applicant should be removed from the TDRL and permanently retired with a 100-percent disability rating. The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.
4. On 21 April 2011, he was removed from the TDRL and he was permanently retired effective 22 April 2011 with a 100-percent disability rating. He completed 16 years, 9 months, and 28 days of active duty service.
5. The Chronological Statement of Retirement Points provided by the applicant, dated 28 March 2011, shows he had 19 years, 6 months, and 20 days of qualifying service for a non-regular retirement at age 60. That service includes active duty and inactive duty service.
6. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.
7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that an individual may be placed on the TDRL (for a maximum period of 5 years as allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. It also provides that members placed on the TDRL do not accrue service credit for the period they are on the TDRL.
8. Army Regulation 635-5 (Separation Documents) states a DD Form 214 will be prepared at the conclusion of a period of active duty service. An individual whose name is placed on the TDRL is considered to have been released from active duty service and, as such, is issued a DD Form 214. While on the TDRL, individuals do not accumulate active duty service and a new DD Form 214 is not issued when their names are removed from the TDRL as they were not in an active duty status while on the TDRL.
9. Army Regulation 635-5 further states a Soldier may not be retained or separated solely to increase retirement or separation benefits.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should have been granted credit for 20 years of qualifying service for retired pay has been noted and is found to lack merit.
2. The applicant had 16+ years of active duty service at the time he was placed on the TDRL and 19 years, 6 months, and 2 days of qualifying service; however, regulatory guidance states a Soldier may not be retained or separated solely to increase retirement or separation benefits. While it appears the applicant believes he should be credited with time spent on the TDRL, time spent on the TDRL is not creditable for active duty service or USAR retirement. In view of the foregoing, there is no basis for granting the applicant credit for 20 years of active duty or Reserve service and he does not meet USAR retirement eligibility.
3. While the applicant contends that the "round-up" rule should be applied to his service computation, there is no such rule that applies to service computation. Additionally, the service he desires to be rounded up is his qualifying service for a non-regular retirement. However, he will not be eligible for a non-regular retirement as he was retired for disability.
4. The evidence of record shows he was properly retired by reason of permanent disability and fully credited with the active duty service he had performed at the time he was placed on the TDRL and he failed to provide evidence to show otherwise. Accordingly, there appears to be no basis to grant his request.
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) AR20110012981
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ABCMR Record of Proceedings (cont) AR20110012981
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