BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120006788 


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, a 15-year medical retirement and the issuance of a 15-year letter.

2.  He states he is requesting the 15-year early medical retirement as he was notified by the U.S. Army Human Resources Command (HRC) office that he possessed the required number of years.  During his medical board processing he was not informed of the process to request a 15-year retirement.  In effect, he would rather have a 15-year letter.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Physical Evaluation Board (PEB) Proceedings, dated 15 October 1997 (pages 1 and 2) 
* U.S. Army Reserve (USAR) discharge orders
* U.S. Army Physical Disability Agency (USAPDA) letter
* two letters of support
* Chronological Statements of Retirement Points

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’s military record shows he enlisted in the USAR, in pay grade E-4, on 16 September 2003, with prior U.S. Air Force and Army National Guard enlisted service.  He was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  He was ordered to active duty in support of Operation Iraqi Freedom (OIF) for a period of 545 days with a reporting date of 16 August 2004.

4.  On 4 April 2005, he was given a permanent physical profile with a PULHES of 113111 for chronic bilateral heel pain secondary to heel spurs, partial tear of the Achilles tendon, and Achilles tendonitis.  The form stated a medical evaluation board (MEB)/PEB was needed. 

5.  A Memorandum, subject:  Notification of Medical Disqualification, dated 25 April 2005, advised the applicant that as a result of his medical examination he had been determined to be medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The memorandum also advised him of the following options for disposition of his case:

* elect to be transferred to the Retired Reserve if otherwise eligible for retirement based on qualifying years of service
* elect to be transferred to the Retired Reserve with at least 15, but less than 20 qualifying years with early qualification eligibility to received retired pay at age 60
* elect to be discharged from the USAR with an Honorable Discharge Certificate
* elect to be considered by a Non-Duty Related-Physical Evaluation Board (NDR-PEB)

6.  His record is void of his election.

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 August 2006, shows while on active duty attending pre-mobilization Soldier Readiness Processing in support of OIF he incurred an injury to the achilles tendon of both feet during physical fitness training with the battalion.  The applicant received a P3 profile in August 2004 as well as April 2005 following a complete physical examination in November 2005.  He was awarded a 30% disability in September 2005.  (Who awarded him the 30% disability is not identified, but presumably it was the Department of Veterans Affairs (VA).)  The injury was found to be in the LOD.

8.  A DD Form 261 (Report of Investigation Line of Duty (LOD) and Misconduct Status), dated 6 August 2006, shows he sustained an injury to his Achilles tendon in both feet during physical fitness training while on active duty.  The injury was determined to be in the LOD.

9.  An MEB convened on 5 September 2007 and considered his diagnosis of bilateral Achilles tendonitis.  The MEB recommended he be referred to a PEB.  The board noted the applicant did desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendations of the MEB were approved on 25 September 2007 and the applicant agreed with the findings and recommendations of the MEB on 26 September 2007.

10.  On 15 October 2007, an informal PEB convened and considered his disability of bilateral Achilles tendonitis, aggravated by reserve training (LOD-Yes) in 2004.  The PEB found him unfit to reasonably perform the duties required of his grade and MOS.  The PEB recommended that he be separated with a combined rating of zero percent and severance pay.

11.  The PEB was approved on 19 October 2007 and on the same day he concurred with their findings and recommendations and waived his right to a formal hearing.

12.  Orders D320-01 issued by the USADPA, on 15 November 2007, discharged him from the USAR with an effective date of 19 December 2007, under the provisions of Army Regulation 635-40, with entitlement to severance pay in accordance with Title 10, U.S. Code, section 1208.  The orders show his disability did not result from a combat-related injury.

13.  His Chronological Statement of Retirement Points, dated 19 April 2012, shows he had completed 15 years, 8 months, and 25 days of creditable service for retired pay as of 23 January 2008.

14.  His Chronological Statement of Retirement Points, dated 7 June 2012, shows he had completed 15 years, 6 months, and 8 days of creditable service for retired pay as of 19 December 2007.

15.  He will reach age 60 on 5 April 2020.
16.  In an advisory opinion, dated 18 May 2012, the Transitional Assistance Management Program Manager, Retired Pay Branch, HRC, Fort Knox, KY, stated:

   a.  According to documentation submitted by the applicant, upon being discharged from the USAR he was authorized and paid disability severance pay.
   
   b.  Title 10, U.S. Code, section 1213, governs the receipt of severance pay.  It states that unless a person who has received disability severance pay and again becomes a member of the Armed Forces, the National Oceanic and Atmospheric Administration, or the Public Health Service, they are not entitled to any payment from the Armed Forces from which they were separated from, or arising out of, their service before separation, under any law administered by one of those services or for it by another of those service.  When the applicant accepted the severance pay, he became ineligible to receive the 15-year retirement letter.
   
   c.  The HRC official stated the applicant was not eligible for a 15-year letter because he did not meet the criteria specified by law.

17.  On 1 June 2012, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  In his response the applicant stated:

   a.  The fact is he does have 15 good years towards retirement from the Reserve.  He also wants to be considered by an MEB as he took the severance pay because of the choices he had and that he would have had to take a plane at his own expense if he wanted an MEB.
   
   b.  Had he been allowed he would have elected an MEB or more preferably he would have elected the 15-year retirement because he initially intended to complete his full time towards 20 years of service.  He was injured during post deployment training.  He fully understands he would have to repay the severance, but he would prefer to be retired from the Reserve.

18.  Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in LOD), specifies a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability, for the purpose of section 12731 (Age and Service Requirements) of this title, will be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 years and less than 20 years of service.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant injured his Achilles tendons during pre-mobilization training.  In April 2005, he was determined to be medically disqualified for continued service in the USAR and needed an MEB/PEB.  His disability was considered by an MEB and PEB and the PEB found him unfit for duty.  The PEB recommended he be separated with a combined rating of zero percent disability and entitlement to severance pay.  He concurred with the PEB's findings and recommendations and was discharged effective 19 December 2007.

2.  His contentions have been noted and found not to have merit.  He concurred with the PEB and was discharged accordingly.  While his retirement points statements confirms he completed over 15 years of creditable service for retired pay, by law he is not entitled to any payment, to include retired pay, not just based on his acceptance of severance pay but because his injuries were incurred in the line of duty.  

3.  He provides insufficient evidence to show his medical conditions were improperly considered by the MEB and PEB or that he was improperly denied a 15-year letter.  His contentions and the documents that he submitted do not demonstrate error or injustice in his medical processing nor error or injustice in the disposition of his case.

4.  He states that he was not informed of the process to request a 15-year retirement.  However, he was not eligible because his condition was determined to be LOD.  He is also not entitled to a 15-year retirement letter for this same reason.  

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)                                         AR20120006788



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ABCMR Record of Proceedings (cont)                                         AR20120006788


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