IN THE CASE OF:	   

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120002653 


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 correction of the separation authority and reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 May 2004 to show he was separated for disability. 

2.  He states at the time of his medical board he elected not to take severance pay because of the repercussion to his retired pay at age 60.  He was transferred to the Retired Reserve.  If he had elected severance pay his DD Form 214 would have reflected that he was separated for service connected disability.  He was medically disqualified and wants his DD Form 214 to reflect that.  He needs this change in his record to allow him to receive 100 percent GI Bill benefits.

3.  He provides:

* DD Form 214
* line of duty determination memorandum
* page 1 of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* orders assigning him to the Retired Reserve  

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.  On 1 March 2003, he entered active duty from the U.S. Army Reserve in support of Operation Noble Eagle.

3.  A Brooke Army Medical Center memorandum, dated 27 August 2003, shows his medical condition was in the line of duty.

4.  On 16 September 2003, a Medical Evaluation Board (MEB) referred him to a PEB for evaluation of his bipolar disorder.  He concurred with the MEB findings and recommendation. 

5.  His informal PEB that convened on 13 November 2003 shows the PEB found him unfit and recommended a combined disability rating of 10 percent.  It further recommended his separation with severance pay if otherwise qualified.  He initially non-concurred and demanded a formal hearing.  On 29 December 2003, he stated that after further reconsideration he wished to withdraw his request for a formal hearing and would accept the PEB's previous recommendation of separation with severance pay at 10 percent. 

6.  The U.S. Army Reserve Personnel Command issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 29 April 2004.

7.  On 29 April 2004, in lieu of separation with severance pay he elected to be transferred to the Retired Reserve, with entitlement to apply for retirement benefits upon reaching age 60.

8.  On 14 May 2004, he was released from active duty for completion of required active service.  He completed 1 year, 1 month, and 18 days of active service during this period of active duty.

9.  A U.S. Army Human Resources Command (HRC) memorandum, dated 19 May 2004, shows a request for the applicant's release from active duty was approved.

	a.  The memorandum shows he was found unfit by reason of physical disability by a PEB and would be released from active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(5) and 8-9a(3).

	b.  The memorandum directed that his DD Form 214 show he was separated for completion of required service (Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-7, with a character of service of honorable.

	c.  The transition center was to enter the remark, "The Soldier has been separated by reason of physical disability and has elected Reserve Retirement In-Lieu of Severance: No Severance Pay is Authorized" in Item 18 (Remarks) of his DD Form 214.  

10.  On 5 August 2004, Headquarters, 90th Regional Readiness Command Orders 04-218-00010 directed the applicant's assignment to the Retired Reserve effective 5 August 2004 by reason of being medically disqualified, not as a result of own misconduct.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) was the authority cited.

DISCUSSION AND CONCLUSIONS:

1.  His contention that since he was medically disqualified his DD Form 214 should reflect that he was released from active duty for service connected disability is noted. 
 
2.  He was found unfit by the PEB and assigned a disability rating of 10 percent.  He elected to be transferred to the Retired Reserve in lieu of separation with severance pay so he would be entitled to apply for retired pay at age 60.  As such, it appears the separation authority and reason for separation shown on his DD Form 214 in question are correct as shown in accordance with regulatory policy in effect at the time.

3.  His statement that he was not permitted to remain in an active status due to physical disability is correct.  Therefore, as prescribed in the HRC memorandum, in the interest of justice it would be appropriate to amend item 18 of his DD Form 214 by adding the remark, "The Soldier has been separated by reason of physical disability and has elected Reserve retirement in-lieu of severance: no severance pay is authorized."

4.  In view of the foregoing, it would be appropriate to correct the applicant's records as shown below. 


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 by adding the following remark to item 18, " The Soldier has been separated by reason of physical disability and has elected Reserve retirement in-lieu of severance: no severance pay is authorized."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of the separation authority and reason for separation on his DD Form 214 for the period ending 14 May 2004 to show he was separated for disability.




      _______ _   _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)                                         AR20120002653



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ABCMR Record of Proceedings (cont)                                         AR20120002653



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