BOARD DATE: 5 June 2012
DOCKET NUMBER: AR20110024020
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 records be corrected to show him as retired.
2. The applicant states being a sergeant first class (SFC), E-7, with the number of years of service he had, he should have been given the choice of being retired in lieu of being discharged with severance pay. Although he is receiving Department of Veterans Affairs (VA) benefits he does not receive the same benefits as if he were retired.
3. The applicant provides a copy of his DD Form 214.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant did not specify which type of retirement he believes he should have been entitled to elect. Therefore, both longevity and medical retirement will be addressed.
3. The applicant's service medical and dental records are believed to be on permanent loan to the VA and are not available for review.
4. The applicant served in the Marine Corps Reserve from 5 May 1975 through 4 April 1976 and in the Army National Guard from 5 April 1976 through 8 November 1977.
5. On 9 November 1977 he enlisted in the Regular Army, completed training, and was awarded the military occupational specialty 63C (Tracked Vehicle Mechanic). He was promoted to sergeant first class, E-7, effective 25 March 1985.
6. The applicant served on continuous active duty until 20 July 1989 when he was discharged with severance pay (in the amount of $40,507.20) due to a physical disability.
7. The applicant's discharge orders show he was authorized severance pay as an SFC with 12 years, 2 months, and 6 days of active duty and 14 years, 2 months, and 16 days for pay purpose. He is shown to have a 20 percent disability evaluation for a non-combat related injury.
8. The available records contain no documentation as to the medical condition that resulted in his discharge or his Medical Evaluation Board/Physical Evaluation Board processing.
9. Army Regulation 635-200 (Enlisted Separations) states a Soldier who has completed 20 but less than 30 years of active federal service in the U.S. Armed Forces may be retired at their request if they have completed all required service obligations at the time of retirement.
10. Title 10, U.S. Code, Chapter 61 (Retirement or Separation for Physical Disability) sets forth provisions for retirement or separation due to a physical disability.
a. Section 1201 states when a service member, with less than 20 years of service, is determined to be unfit to perform the duties of their office, grade, rank, or rating because of physical disability, the member may be retired if their disability is at least 30 percent. If the disability is less than 30 percent they may be discharged with severance pay.
b. Section 1209 states any member of the armed forces who has at least 20 years of service (for a non-regular retirement), and who would be qualified for retirement under this chapter but for the fact that his disability is less than 30 percent under the standard schedule of rating disabilities in use by the VA, may elect, instead of being separated under this chapter, to be transferred to the inactive status list, if otherwise eligible, to receive retired pay at age 60.
DISCUSSION AND CONCLUSIONS:
1. The applicant had 12 years of active duty with 2 years of Reserve service at the time he was found to be medically unfit to continue on active duty.
2. Since he did not complete 20 years of active duty, he does not qualify for a standard retirement based on longevity.
3. Since he did not complete 20 qualifying years toward a retirement at age 60 prior to being found unfit, he was not eligible to transfer to an inactive status and receive retirement at age 60.
4. The record does not contain and the applicant has not provided any evidence that his disability evaluation was incorrect and that he warranted an evaluation of 30 percent or more at the time of his separation. Therefore, he is not shown to meet the criteria for a medical retirement.
5. There are no provisions in law or regulation that would allow this applicant to elect any type of retirement in lieu of discharge with severance pay. Therefore, no relief is warranted.
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) AR20110024020
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ABCMR Record of Proceedings (cont) AR20110024020
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