BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120007277 


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 change of his records to show he was transferred to the Retired Reserve instead of being discharged from the U.S. Army Reserve (USAR) with severance pay.

2.  The applicant states a physical evaluation board (PEB) found him unfit for service and recommended his discharge with severance pay.  He had completed 20 years of qualifying service for retirement pay at age 60.  The processing clerk told him he could not be transferred to the Retired Reserve and because the PEB had awarded him a 10% disability he could only be discharged with severance pay.

3.  The applicant provides:

* a letter from the U.S. Army Human Resources Command (HRC)
* his 20-year letter, dated 17 December 2003
* a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) 
* two pages from a DA Form 199 (PEB Proceedings), dated 26 July 2004
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 November 2004

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.  In a letter, dated 17 December 2003, HRC notified the applicant he had completed the required years of qualifying Reserve service and is eligible for retired pay upon application at age 60.

3.  HRC Orders A-04-402981, dated 5 April 2004, ordered him to active duty, effective 15 May 2004, for active duty medical extension (ADME).

4.  The applicant's record in the interactive Personnel Electronic Records Management System (iPERMS) does not include documentation of his discharge processing.  All of the remaining evidence used in the remainder of this case was provided by the applicant and the USAPDA.

5.  On 26 April 2004, an MEB referred him to a PEB for chronic back pain radiculopathy of the left leg due to degenerative disc disease.

6.  On 5 May 2004, he indicated he did desire to continue on active duty.  He did not agree with the MEB's findings and recommendation.

7.  On 24 May 2004, an informal PEB found he was physically unfit for chronic back pain due to lumbar degenerative disc disease.  The PEB recommended a combined disability rating of 10% and his separation with severance pay.  The PEB also found his disability was not based on an injury or disease received as a direct result of armed conflict or caused by an instrumentality of war, incurred during a period of war as defined by law.

8.  The DA Form 199 contains the statement "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or you may request transfer to the Retired Reserve and receive retired pay at age 60."

9.  A memorandum from Headquarters, Dwight David Eisenhower Army Medical Center, Fort Gordon, GA, dated 2 June 2004, forwarded the results of the PEB to the applicant.

	a.  The memorandum provided instructions for him to complete his election on page 3 of the DA Form 199.

	b.  He was advised he may have the option of accepting disability severance pay and forfeiting his Reserve retirement pay, or he may request transfer to inactive Reserve status and receive retired pay at age 60.

	c.  If he elected to be transferred to the Retired Reserve, he was to make his election in 1a, sign and date page 4.  This page was not available for review.

10.  On 8 June 2004, he acknowledged he had been advised of the findings and recommendations of the PEB and he had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto.  He indicated he did not concur and demanded a formal hearing with a personal appearance.  He also requested a regularly appointed counsel to represent him.

11.  Order Numbers 007425 and 007744, issued by the 65th Regional Readiness Command (RRC) Guaynabo, PR, dated 13 May and 22 July 2004, respectively, ordered him to temporary duty (TDY) in San Antonio, TX to attend a formal PEB hearing on 25 July 2004.

12.  On 26 July 2004, a formal PEB found he was physically unfit for chronic back pain due to lumbar degenerative disc disease.  The PEB recommended a combined disability rating of 10% and separation with severance pay.  The PEB also found his disability was not based on an injury or disease received as a direct result of armed conflict or caused by an instrumentality of war, incurred during a period of war as defined by law.  The DA Form 199 indicates:

	a.  The statement that appears in item 8b (Disability Description), "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or you may request transfer to the Retired Reserve and receive retired pay at age 60."

	b.  On 26 July 2004, the applicant acknowledged he had been advised of the findings and recommendation of the PEB and he had received a full explanation of the results of the findings and recommendation and legal rights pertaining thereto.

	c.  He did not concur with the findings and recommendation of the PEB but he waived a formal hearing.  He indicated a written appeal would follow; however, there is no evidence of an appeal available for review.

	d.  His signature, the signature of the counselor, and the signature of the approval authority are all dated 26 July 2004.  There is a handwritten note, initialed by the applicant and dated 26 July 2004, stating, "I want to Retire."

13.  A memorandum from USAPDA to the applicant, dated 9 August 2004, noted his disagreement with the findings of the PEB.  The USAPDA reviewed his entire case and concluded it was properly adjudicated by the PEB that correctly applied the rules that govern the Physical Disability Evaluation System (PDES).  The findings and recommendation of the PEB were supported by substantial evidence and were therefore affirmed.  His case was forwarded to the Physical Disability Branch for final disposition.

14.  In a memorandum from the applicant to the USAPDA, Subject:  Disability Election:  Separation with Severance Pay or Transfer to the Retired Reserve, dated 7 September 2004, he provided his election of severance pay or transfer to the Retired Reserve.  He elected Option 1b, to be transferred to the Retired Reserve with entitlement to apply for Reserve retirement upon reaching age 60.  Paragraph 2 of this memorandum states, "I FULLY UNDERSTAND THAT THIS ELECTION IS FINAL AND CONCLUSIVE FOR ALL PURPOSES AND MAY NOT BE SUBSEQUENTLY CHANGED."  This memorandum is signed by the applicant.

15.  An email, provided by USAPDA, from the Reserve Component (RC) Liaison, Physical Disability Agency (Walter Reed Army Medical Center), to Rodriguez Army Health Clinic (Puerto Rico) requested "the election for [the applicant's] retirement in lieu of disability severance pay."  A specific response to this request is contained in the available records.

16.  He provided a second memorandum to USAPDA, Subject:  Disability Election:  Separation with Severance Pay or Transfer to the Retired Reserve, dated 12 October 2004, wherein he provided his election of severance pay or transfer to the Retired Reserve.  On this form he elected Option 1a, to be discharged with entitlement to receive severance pay.  This memorandum is signed by the applicant.

17.  The applicant's discharge orders are not available for review.  However, his DD Form 214 for the period ending 28 November 2004 shows in:

* item 9 (Command to Which Transferred) – NA
* item 23 (Type of Separation) – discharge
* item 25 (Separation Authority) – Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3)
* item 26 (Separation Code) – JFL
* item 27 (Reentry (RE) Code) – NA
* item 28 (Narrative Reason for Separation) – disability, severance pay

18.  During the processing of this case, on 20 June 2012, an advisory opinion was received from USAPDA.  The advisory official recommended no changes be made to the applicant's records.

	a.  The official DA Form 199 found at USAPDA did not contain the additional note initialed by the applicant and was dated 26 July 2004.  According to USAPDA, additional comments by the applicant would have had to have been placed there before the approval authority's signature that occurred at the PEB and only after said election was sent to the PEB.

	b.  Even if the applicant initially requested retirement, on 12 October 2004, he later formally requested to receive severance pay instead of retirement.  In accordance with Army Regulation 635-40, paragraph 8-9b, this election is considered final.

	c.  Email traffic in September 2004 indicated that after USAPDA had finalized its review of his case he was formally requested to elect whether he wanted to retire and waive his disability severance pay, or to accept his severance pay and waive his retirement.

19.  On 27 June 2012, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.

20.  On 16 July 2012, the applicant responded to the advisory opinion.

	a.  He disagreed with the recommendation of the USAPDA.

	b.  The PEB procedures stated all sources of different documentation were used and filled out during the process.  When he was asked verbally and in writing he requested to be sent to the Retired Reserve due to disability and in the final process he requested it again.

	c.  After his formal hearing he received a memorandum, dated 9 August 2004, with the final decision on his PEB appeal.  An election memorandum with a subject of Disability Election was filled out and he signed it on 7 September 2004.

	d.  During the long and complicated process he requested several times to be retired.  He was told by out-processing clerks and personnel that he could not be sent to the Retired Reserve because the PEB only gave him a 10% disability rating.

	e.  He also provided the following additional documentation in response the advisory opinion:

* a memorandum from Headquarters, Dwight David Eisenhower Army Medical Center, dated 2 June 2004
* two pages of a DA Form 199, dated 8 June 2004
* 65th Regional Readiness Command (RRC), Guaynabo, PR, Order Number 007425, dated 13 July 2004
* 65th RRC Order Number 00744, dated 22 July 2004
* a memorandum from USAPDA, dated 9 August 2004, subject:  Nonconcurrence/Rebuttal to PEB Findings
* a memorandum from the applicant to USAPDA, signed 7 September 2004, subject:  Disability Election:  Separation with Severance Pay or Transfer to the Retired Reserve

21.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states the appropriate type of separation will be entered in item 27 of the DD Form 214.  Retirement is among the list of types of separation.

22.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(5), will be assigned SPD code MFR and the narrative reason for separation will be "Disability, other."  When SPD MFR is utilized, the statement, "The Soldier has been separated by reason of physical disability and has selected Reserve Retirement In Lieu Of Severance:  No Severance Pay Authorized," will be entered in item 18 (Remarks of the DD Form 214.

23.  The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for active Army Soldiers and RC Soldiers.  Paragraph 1 states an RE-3 code will be assigned when a Soldier elected to receive retired pay at age 60 in lieu of disability severance pay.

24.  Army Regulation 635-40, in effect at the time, governed the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability and provided the rules governing the PEB process.

	a.  A PEB will include an advisory statement on the DA Form 199 informing the Soldier of legal or administrative requirements that impact on the Soldier's disability benefits in certain situations.

	b.  When a Soldier has a rating of less than 30% and has at least 20 qualifying years for retirement for nonregular service, the following statement will be entered on the DA Form 199:  "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or you may request transfer to the Retired Reserve and receive retired pay at age 60.  According to Title 10, U.S. Code, sections 1209 and 1213, you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve."

	c.  Paragraph 4-24b(5) states retirement orders will be issued for transfer of a Soldier who has completed at least 20 qualifying years of Reserve service and otherwise qualifies for transfer as described in paragraph 8-9 to the Inactive Reserve on the Soldier's request.

	d.  Paragraph 8-9 states a Soldier may forfeit severance pay, be transferred to the Retired Reserve, and non-disability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the Retired Reserve is requested.  According to the provisions of Title 10, U.S. Code, sections 1209 and 1213, all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay.

	e.  Paragraph 8-9b states Soldiers processing for disability under this regulation will be notified of their options.  The letter will provide sufficient detail (verified years of active service for severance pay and Reserve years of service for retirement) to assist the Soldier to reach an informed decision.  An election once made is final and conclusive and may not be changed.

DISCUSSION AND CONCLUSIONS:

1.  The regulation clearly states an RC Soldier with 20 years of qualifying service for retired pay may, upon being found unfit for further service, request to be transferred to the Retired Reserve.  The DA Forms 199 he signed on 8 June 2004 and 26 July 2004 and the memorandum, dated 2 June 2004, from Headquarters, Dwight David Eisenhower Army Medical Center advised him he may have the option of accepting disability severance pay and forfeiting his reserve retirement pay or request transfer to inactive Reserve status and receive retired pay at age 60.

2.  The USAPDA questions whether the note entered on the DA Form 199 made by the applicant could have been made prior to the approval authority's signature.  It is noted that all of the dates of the signatures on the final DA Form 199 are 26 July 2004, including the counselor who informed the applicant of the findings and recommendation and his legal rights pertaining thereto.

3.  USAPDA states that even if he had initially requested retirement he later formally requested to receive severance pay instead of retirement.  USAPDA then cites Army Regulation 635-40, paragraph 8-9b and states his election of 24 October 2004, his second election, is now considered final.  However, the regulation states an election once made is final and conclusive and may not be changed.

4.  USAPDA states the email traffic of 27 September 2004 formally requested he make his election to receive severance pay instead of retirement.  However, the email requested "the election for [the applicant's] retirement in lieu of disability severance pay."  It appears he had made his election but WRAMC did not have a copy of it.

5.  Instead of providing the election he signed on 7 September 2004, it appears he was required to complete a second election after being told he could not elect transfer to the Retired Reserve.

6.  Final disposition of his appeal of his PEB findings and recommendation occurred on 9 August 2004.  It appears he made his disability election to be transferred to the Retired Reserve on 7 September 2004.  It is reasonable to conclude this election would have been made shortly after the final disposition of his appeal.  According to the regulation this election is final and cannot be changed.

7.  In view of the foregoing and notwithstanding the advisory opinion, it would be appropriate to revoke any orders issued discharging the applicant on
28 November 2004 and publish new orders transferring him to the Retired Reserve effective 28 November 2004.

8.  In addition, appropriate changes should be made to his DD Form 214 to show he was transferred to the Retired Reserve on 28 November 2004.

9.  These changes will require recoupment of any severance pay he received.


BOARD VOTE:

__x______  __x______  __x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  revoking any orders discharging him from the USAR effective
28 November 2004;

	b.  issuing orders releasing him from active duty and transferring him to the Retired Reserve effective 28 November 2004;

	c.  deleting from items 9, 23, 25, 26, 27, and 28 of his DD Form 214 for the period ending 28 November 2004 the current entries and replacing them with the following entries:

* item 9 – USAR Control Group (Retired)
* item 23 – Retirement
* item 25 – Army Regulation 635-40, paragraph 4-24b(5)
* item 26 – MFR
* item 27 – 3
* item 28 – Disability, Other

d.  deleting from item 18 of his DD Form 214 the entry:

* "SERVICE MEMBER SEPARATED BY REASON OF PHYSICAL DISABILITY SEVERANCE AMOUNT UNKNOWN"

e.  entering in item 18 of his DD Form 214 the entry:

* "THE SOLDIER HAS BEEN SEPARATED BY REASON OF PHYSICAL DISABILITY AND HAS SELECTED RESERVE RETIREMENT IN LIEU OF SEVERANCE:  NO SEVERANCE PAY AUTHORIZED"

	f.  recouping any severance pay he may have already received.



      __________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)                                         AR20120007277



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ABCMR Record of Proceedings (cont)                                         AR20120007277



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