IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120000581 


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 payment of severance pay.

2.  He states at the time of his medical separation he was awarded a 0 percent (%) disability rating and severance pay, which he did not receive.

3.  He provides orders and service medical records.

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 Regular Army (RA) on 14 February 1969 and he was honorably released from active duty on 8 October 1970.  On 2 September 


1975, he again enlisted in the RA, and he continued his service through reenlistments and extensions.

3.  On 23 March 1989, his commander was notified the applicant had been given a permanent physical profile for chronic back pain.

4.  On 19 September 1989, the Chief, Separations and Appeals Branch, Total Army Personnel Command (PERSCOM), notified the applicant's chain of command that his appeal of a Department of the Army imposed bar to reenlistment was disapproved.  He was to be separated no later than 7 November 1989.

5.  His record shows he was retained on active duty after 7 November 1989 through three extensions.  After his third extension, his expiration term of service (ETS) was 2 July 1990.  The record shows he was retained on active duty because he was pending a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) for chronic low back pain.  

6.  A DA Form 199 (PEB Proceedings) shows a formal PEB convened on 26 January 1990.  The PEB found him unfit based on his diagnosis of "mechanical low back pain without objective findings."  The PEB recommended a 0% disability rating and that the applicant be separated with severance pay if otherwise qualified.  The PEB findings and recommendations were approved on 26 January 1990.

7.  On 2 February 1990, PERSCOM issued a message authorizing the applicant's immediate discharge with severance pay in the grade of staff sergeant (SSG)/E-6.

8.  His record includes a U.S. Army Physical Disability Agency (USAPDA) Form 18 (Revised PEB Proceedings), dated 14 February 1990, showing the USAPDA reviewed his entire file and the formal PEB proceedings.  The review indicated no unfitting conditions that would prevent his adequate performance of duty.  Based on this review, the USAPDA modified the formal PEB findings to "fit for duty" and indicated his discharge for ETS with a bar to reenlistment should be processed.

9.  On 14 February 1990, PERSCOM rescinded the message, dated 2 February 1990, in its entirety.

10.  On 20 February 1990, the applicant elected to appeal the modified PEB findings.


11.  On 9 May 1990, the Army Physical Disability Appeal Board convened to consider his case.  The majority of the board found the applicant was properly rated by the USAPDA and determined he was fit for duty or separation.  

12.  Orders 117-119, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 18 June 1990, assigned the applicant to the U.S. Army Transition Point for separation processing.  The orders show he was to be discharged on 2 July 1990.  The orders do not state he was to receive severance pay.  On 2 July 1990, he was honorably discharged by reason of ETS.  He completed 12 years, 7 months, and 16 days of net active service this period with 3 years, 10 months, and 10 days of prior active service, for a total of 16 years, 5 months, and 26 days of creditable active service.

13.  The applicant provides Orders 28-101, issued by the same headquarters, dated 9 February 1990.  The orders show he was to be assigned to the U.S. Army Transition Point, Fort Knox for transition processing and discharge on
16 February 1990.  The orders show he was authorized severance pay in grade SSG and that he had been given a 0% disability rating.

14.  Title 10, U.S. Code, section 1203, states that upon a determination by the Secretary concerned that a member is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the member may be separated with severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was authorized severance pay but he did not receive any.

2.  The record shows the findings of his formal PEB were reviewed and revised by the USAPDA after orders authorizing severance pay had been published.  Because he was found to be fit for duty, the orders authorizing his discharge with severance pay would have been revoked.

3.  He appealed the modified PEB findings and his appeal was denied.  However, because he was found to be fit for duty, he was allowed to serve up to his ETS.  Based on his discharge by reason of ETS, he was not authorized severance pay.

4.  In view of the foregoing, there no basis for granting the applicant's requested relief.


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)                                         AR20120000581



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ABCMR Record of Proceedings (cont)                                         AR20120000581



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