IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110015500 


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 reconsideration of his previous applications to correct his records to show he elected transfer to the Retired Reserve in lieu of disability severance pay.  He also requests correction of the narrative reason for separation from "disability, severance pay" to "temporary medical retirement" with his severance pay being considered as a "miscellaneous debt."

2.  The applicant states the medical evaluation board (MEB) and physical evaluation board (PEB) did not fully and properly evaluate his medical conditions as evidenced by his heart attack 12 days after discharge.  He was not properly and fully counseled concerning the effects of disability severance pay in lieu of transfer to the Retired Reserve.  He did not understand and was not told he would lose all of his benefits as a retiree.  Due to his medical conditions, he was not capable of making a life-changing decision at the time of his PEB.  The Defense Finance and Accounting Service (DFAS) has advised him that he could be reinstated as a retiree with benefits if the reason for his separation is changed.

3.  The applicant provides:

* copies of correspondence to and from the U.S. Army Human Resources Command (HRC) Retired Pay Branch
* memorandum from the Transitional Assistance Management Program (TAMP) Manager
* Department of Veterans Affairs (VA) Rating Decision, dated 24 January 2006
* VA payment statement, dated 31 October 2008
* two prior Army Board for Correction of Military Records (ABCMR) decisional documents 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* DA Form 199 (PEB Proceedings) with associated documents
* Disability Election Statement documents
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 705 (Army Physical Fitness Test Scorecard)
* mobilization orders, dated 25 September 2002
* 34 pages of medical records

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Numbers AR20090016488 and AR20100026196, dated 13 July 2010 and 19 April 2011, respectively.

2.  The applicant's requests to have his narrative reason for separation changed to "temporary medical retirement" with his severance pay considered as a "miscellaneous debt" were not specifically addressed in either of the prior ABCMR reviews.  The term "miscellaneous debt" was not fully described and answered in the prior decisional documents.  Additionally, the applicant's statement that he was not fully and properly counseled is a new argument.  Therefore, there is sufficient new evidence or argument warranting an additional review.

3.  The applicant, a career Soldier in the rank of command sergeant major (CSM), was born on 22 January 1947.  He enlisted in the Texas Army National Guard on 3 September 1969.  He transferred to the U.S. Army Reserve in 1984 and continued to serve without a break in service until his discharge on 24 May 2005.  His primary military occupational specialty (MOS) was 00Z5O (CSM) with secondary MOS's of 96Z5O (Intelligence Senior Sergeant) and 11Z5O (Infantry Senior Sergeant).

4.  On 12 May 1990, the U.S. Army Reserve Personnel Center (later known as HRC, St. Louis, MO) issued the applicant a notification of entitlement to retirement at age 60 (commonly called a 20-year letter).  This letter notified him that he had completed the required years of service and was eligible for retired pay upon application at age 60.

5.  On 18 October 2001, he was ordered to active duty in support of Operation Iraqi Freedom.  He was initially assigned to the 321st Military Intelligence Battalion, Fort Hood, TX, and he was transferred to the 4003rd Garrison Support Unit, Fort Hood, for medical purposes on 3 September 2003.

6.  In January 2005, he was evaluated for his mechanical low back pain and subsequently underwent various medical examinations for divers conditions, including sleep apnea and hypertensive heart disease, before being referred to the Army Physical Disability Evaluation System.

7.  On 8 February 2005, an MEB found the applicant to be suffering from several medical conditions but determined that only his chronic low back pain and mild obstructive sleep apnea failed to meet medical retention standards.  His case was referred to a PEB for these two conditions.

8.  A 31 March 2005 informal PEB found the applicant's chronic subjective low back pain and mild obstructive sleep apnea to be unfitting and granted him a 
10-percent disability rating for his back and a 0-percent disability rating for sleep apnea.  The PEB recommended the applicant's separation with entitlement to severance pay.  The applicant nonconcurred with the PEB's findings and recommendations and requested a formal hearing with counsel.

9.  On 27 May 2005, a formal PEB found his chronic subjective low back pain prevented him from performing the duties required of his grade and specialty and, therefore, he was physically unfit for retention.  The PEB noted that although the applicant was diagnosed with sleep apnea, his post-surgery status and utilization of a continuous positive airway pressure device on a nightly basis was not unfitting.  

10.  The DA Form 199 (Physical Evaluation Board (PEB) Proceedings) stated, “As a Soldier with a rating of less than 30% who may have at least 20 qualifying years for Reserve retirement UP Chapter 67, Title 10, USC, you may have the option of accepting disability severance pay and forfeiting your Reserve retirement pay, or you may request transfer to inactive Reserve status and receive Reserve retired pay at age 60” (22 January 2007).

11.  The applicant concurred with the findings and recommendations of the formal PEB.  He was advised by separate correspondence that once his case had been finalized, his election was final and conclusive for all purposes and could not be changed.  It was suggested that he give the matter full and careful consideration prior to returning his election.  The available evidence shows the applicant had military counsel during the PEB processing.

12.  On 29 April 2005, the applicant formally elected to be discharged with entitlement to severance pay.  He acknowledged he fully understood his election was final and conclusive for all purposes and that his election could not be subsequently changed.

13.  On 24 May 2005, he was honorably discharged for physical disability with severance pay.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(3), with a narrative reason for separation of "disability, severance pay" and that he received $125,560.80 in severance pay.  Although he was discharged, the DD Form 214 erroneously shows transfer to his Reserve unit in Texas.

14.  On 6 June 2005, 12 days after his discharge, the applicant suffered a heart attack necessitating cardiac stent surgery.

15.  On 6 January 2006, HRC issued orders reassigning him to the Retired Reserve based on reaching age 60.  Based on these orders, HRC retired the applicant effective 22 January 2007 but subsequently revoked those orders on 2 July 2007 due to his receipt of separation pay.  This error resulted in an erroneous payment of retired pay from February to July 2007.

16.  A 24 January 2006 VA Rating Decision shows the VA evaluated the applicant for 18 conditions and granted disability entitlement for the following conditions and disability ratings:  obstructive sleep apnea, 50 percent; hypertensive heart disease, 30 percent; major depressive disorder, 30 percent; degenerative disk disease, 20 percent; gastric reflux disease, 10 percent; left shoulder osteoarthritis, 10 percent; tinnitus, 10 percent; hypertension, 10 percent; and noncompensable ratings for allergic rhinitis, bilateral hearing loss, and uvulpalatopharngoplasty [the surgical removal of tissue from the throat for treatment for sleep apnea].

17.  The 31 October 2008 VA document shows the applicant was granted individual unemployability and a payment withholding was in place due to his receipt of disability severance pay.

18.  The applicant's 15 September 2009 ABCMR application for an increase in his disability evaluation to a level warranting disability retirement was denied on 13 July 2010 in ABCMR Docket Number AR20090016488.

19.  In his second application, dated 8 September 2010, he stated his record was unjust because of his retirement eligibilities and revocation of retirement orders while he was in the Retired Reserve.  He maintained it is in the interest of justice to reinstate his retirement benefits and re-characterize his separation from "disability, severance pay" to "miscellaneous debt."  These statements were interpreted to mean he was requesting correction of his records to show he elected Reserve retirement at age 60 in lieu of disability severance pay.

20.  On 19 April 2011, the ABCMR in Docket Number AR20100026196 denied the applicant's request.  The decisional document did not address the applicant's use of the term "miscellaneous debt" as a narrative reason for separation.

21.  An ARPC Form 249-E, dated 12 July 2011, shows the applicant had 36 qualifying years of service toward retirement at age 60 and he was in a retired status as of 20 December 2005.

22.  On 22 July 2011, the HRC Retired Pay Branch TAMP Manager provided an advisory opinion which opined that based on the information provided, it was apparent that the applicant had not been properly counseled on his disability elections as it related to his election to accept disability severance pay in lieu of transfer to the Retired Reserve.

23.  In a statement associated with the above opinion, the applicant states the PEB gave him three options:

	a.  stay on active duty until age 60 – not an option due to having already been gone from home for over 3 1/2 years;

	b.  wait 22 months until he reached age 60 to receive retired pay – not an option since he was self-employed and was not physically able to start over; or

	c.  take the separation pay – the only viable option, but he was not advised that he would not be able to claim any benefits as a retiree.

24.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

25.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and states the narrative reason for separation is based on regulatory or other authority for the separation.

26.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  Paragraph 3-3a provides that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.  Paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating.

27.  Army Regulation 635-40, paragraph 3-6 states a Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

28.  Army Regulation 635-40, paragraph 3-9, states the Temporary Disability Retired List (TDRL) is used in the nature of a "pending list."  It provides a safeguard for the government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  The requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the MEB and PEB did not fully and properly evaluate his medical conditions as evidenced by his heart attack 12 days after discharge.  He was not properly and fully counseled concerning the effects disability severance pay in lieu of transfer to the Retired Reserve.  He did not understand and was not told he would lose all of his benefits as a retiree.  Due to his medical conditions, he was not capable of making a life-changing decision at the time of his PEB.  DFAS advised him that he could be reinstated as a retiree with benefits if the reason for his separation is changed.

2.  While both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army rates only conditions determined to adversely affect the individual's ability to perform his or her assigned duties.  Physical disability separation pay or retirement compensates the individual for loss of a military career.  The VA, on the other hand, may rate any service-connected impairment in order to compensate the individual for loss of civilian employability or social functioning.  The U.S. Army Physical Disability Agency has also pointed out that military disability ratings are based upon the degree to which a medical condition affects the ability to perform duty and not upon the diagnosis or name attached to the condition.

3.  At the time of his PEB, the applicant had a number of medical conditions, including sleep apnea and hypertensive heart disease.  However, his commanding officer indicated that the only condition interfering with his ability to perform his assigned duties was his back condition.  If the applicant's condition was not interfering with his ability to perform his assigned duties, it cannot be found to be unfitting.

4.  The applicant requests an interim or temporary disability status.  The only temporary disability provision in law or regulation would be placement on the TDRL.  In order to be placed on the TDRL, a Solder must be found unfit by reason of physical disability based on a condition warranting at least a 
30-percent disability evaluation that is considered unstable.

5.  At the time of the applicant's formal PEB, the only condition shown to prevent the applicant from performing his assigned duties was his back condition.  Even accepting the VA's higher disability evaluation of 20 percent, this condition still would not meet the criteria for placement on either the TDRL or for permanent disability retirement.

6.  The available evidence shows the applicant had military counsel at the time of his formal PEB.  He was also notified on at least two occasions that he was 

eligible for retired pay at age 60 in lieu of disability severance pay, that he would forfeit his retired pay if he elected disability severance pay, and was advised to carefully consider his options.

7.  By his own statement, the applicant weighed his options and elected in writing to accept both the PEB findings and the disability severance pay in lieu of being transferred to the Retired Reserve.

8.  The applicant has provided insufficient evidence to show he was improperly counseled on his options at the time of his discharge.

9.  The applicant's request that his narrative reason for separation be changed to read "miscellaneous debt" is without merit.  There is no regulatory or other authority for the separation under such a term.  The applicant was discharged instead of transferred to the Retired Reserve because he accepted disability severance pay in lieu of waiting until he reached age 60 to receive retired pay.

10.  The applicant provided insufficient evidence to show that the MEB and PEB did not properly address all of his medical conditions, that he met the requirements for either a physical disability retirement or placement on the TDRL, that he was not properly counseled on his options and the effect of those options at the time of his discharge, or that his narrative reason for separation is incorrect.

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 to amend the decision of the ABCMR set forth in Docket 

Numbers AR20090016488 and AR20100026196, dated 13 July 2010 and 19 April 2011, respectively.



      _____________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)                                         AR20110015500



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ABCMR Record of Proceedings (cont)                                         AR20110015500



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