BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120017936 


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:

* exception to policy to be retained on Continuation on Active Reserve (COAR) status and granted Sanctuary so she can attain 20 years of active federal service (AFS)
* receipt of concurrent retirement and disability pay (CRDP) from the Army and Department of Veterans Affairs (VA)

2.  The applicant states:

* at the time of her discharge she had 19 years, 2 months, and 25 days of AFS
* she should be granted Sanctuary and retained until she completes
20 years of service in accordance with Army Regulation 600-20 (Army Command Policy)
* she was not aware of the COAR status option

3.  The applicant provides the following documents:

* self-authored statement
* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a DA Form 3349 (Physical Profile)
* a DA Form 2823 (Sworn Statement)


* two orders
* her VA Rating Decision
* four memoranda

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 record shows she enlisted in the Washington Army National Guard (WAARNG) on 6 October 1986 and was ordered to active duty for training (ADT) on 5 October 1986.  On 28 March 1987, she was released from ADT and was returned to her unit in Washington.  This DD Form 214 shows in item 12c (Net Active Service This Period) that she completed 5 months and 23 days of AD service.

3.  On 21 March 1988, she was ordered to AD in the Active Guard Reserve (AGR) program.  She served until she was released honorably on 24 January 1991 and activated for support of Operation Desert Shield.  This DD Form 214 shows she completed 2 years, 10 months, and 4 days of AD service.

4.  On 25 January 1991, she was ordered to AD in support of Operation Desert Shield/Desert Storm.  She served until she was released honorably on 5 June 1991 and returned to the WAARNG.  This DD Form 214 shows she completed 
4 months and 11 days of AD service.

5.  Her record contains Orders Number 133-10, issued by Headquarters, Military Department, State of Washington, Office of the Adjutant General, dated 13 May 1991, which show that on 6 June 1991 she was ordered to AD in the AGR.

6.  Her record contains:

	a.  DA Form 3349, dated 18 March 2005, which shows she was issued a permanent "4" profile for her upper and lower extremities and a "3" for psychological and as a result, she was referred to a medical and physical evaluation board;

	b.  DA Form 2823, dated 22 March 2005, wherein she indicated that on 
13 June 2005, while on official leave, she went to her place of duty, and after leaving was injured in a motor vehicle accident (MVA).

7.  Her record is void of nor did she submit the results of the initial MEB or PEB   that directed her placement of the temporary disability retired list (TDRL).

8.  The applicant submitted:

	a.  a memorandum from the Department of Military and Veterans Affairs, Adjutant General's Office, Commonwealth of Pennsylvania, dated 11 May 2005, which states she had been selected for continuation in the AGR program;  

	b.  a memorandum from the Department of Military and Veterans Affairs, Adjutant General's Office, Commonwealth of Pennsylvania, dated 21 October 2005, Subject:  Attainment of 18 years AFS, which indicated she had attained 
18 years of AFS and would attain 20 years of AFS, effective 13 September 2007.  She would also be eligible for immediate retirement on 30 September 2007; 

	c.  Orders Number 347-005, issued by the Commonwealth of Pennsylvania, Department of Military and Veterans Affair, the Adjutant General, dated 
13 December 2005, which show, effective 31 December 2005, she was retired due to physical disability, which was incurred while she was entitled to basic pay and placed on the TDRL, effective 1 January 2006, with a 50-percent disability rating;

	d.  Orders Number 347-006, issued by the Commonwealth of Pennsylvania, Department of Military and Veterans Affair, the Adjutant General, dated 
13 December 2005, which show she was discharged from the ARNG and assigned to the Retired Reserve, effective 31 December 2005;

	e.  her VA Rating decision, dated 4 January 2007, which shows the VA awarded her individual unemployability and 90 percent combined service-connected disability compensation, effective 1 January 2006.

9.  The applicant's record contains a DA Form 199 (PEB Proceedings), dated 
20 July 2009, which determined upon reexamination her condition was sufficient evidence of continued physical unfitness for continued military service and 
retained her on the TDRL due to her MVA by reason of:

* a disfiguring forehead scar
* chronic neck pain following fusion of C5-7 due to MVA
* chronic low back pain due to fractures of L4 and 5 secondary to MVA
* residuals of traumatic brain injury due to MVA

10.  The applicant submitted a letter from the Defense Finance and Accounting Service, dated 29 December 2009, in which she highlighted "The 2008 National Defense Authorization Act (NDAA) was signed into law on 28 January 2008, expanding the eligibility of Combat-Related Special Compensation (CRSC) to anyone eligible to receive military retired pay.  As a Medical Chapter 61 retiree, you now qualify to apply for this program."  The letter indicates she was provided an application.

11.  The applicant's official medical records contain Orders D147-2806 issued by the U.S. Army Physical Disability Agency, Washington, DC, dated 27 May 2011, which show she was removed from the TDRL on 31 January 2010 due to a permanent physical disability and permanently retired.

12.  She submitted a memorandum from the Department of Military and Veterans Affairs, Office of the Adjutant General, Commonwealth of Pennsylvania, dated 
26 April 2012, Subject:  Request for Exception to Policy to Obtain 20-Year AFS Retirement.  The memorandum states, in pertinent part:

   a.  although the applicant indicates she obtained sanctuary prior to her separation, final medical determinations are not governed by the rules of sanctuary; and 
   
   b.  their office is unable to change or amend the order pertaining to her retirement due to findings of her medical fitness by the MEB/PEB which resulted in her separation from the military.

13.  Sanctuary is a term used to describe the period in a Soldier's career where he or she has enough creditable service to be within 2 years of retirement eligibility, whether active or Reserve, officer or enlisted.

	a.  There are two types of sanctuary, active duty and Reserve (inactive duty).  Soldiers cannot always mix Reserve and active duty service for sanctuary reasons.  For example, a Soldier cannot enter sanctuary for a regular retirement if he/she has 15 years of inactive service and 3 years of active service, but would enter sanctuary for a non-regular retirement.  To enter sanctuary for a regular retirement, a Soldier must have 18 years of active service.
	b.  Sanctuary means the Soldier, who is within 2 years of retirement eligibility, may not be involuntarily separated until retirement eligibility is reached.  Only the service secretary may approve exceptions.

	c.  Sanctuary Soldiers must be able to perform their assigned duties, thus Soldiers with disabilities do not qualify for sanctuary.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Chapter 3 (Policies), paragraph 3-6, shows that providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army mission.  The time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis.  The interest of both the Army and the Soldier must be considered.  A Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

   b.  Chapter 6 (Continuance of Disabled Personnel on Active Duty) prescribes procedures under which certain Soldiers of the Active Army (on the active duty list) who are eligible for retirement or separation because of physical disability may be COAD.  The criteria, delineated in paragraph 6-3, are not applicable to Soldiers requesting continuance in the Reserve Components (RC).

   c.  Soldiers in the RC (not part of Active Army end strength), to include the AGR program, who request continuance in the RC will be processed according to paragraph 8-7, which states, to be considered for continuance in the RC
under the provisions of this chapter, a Soldier must be:
   
   (1)  found unfit by a PEB because of a disability that was not the result of
intentional misconduct nor willful neglect, nor incurred during a period of AWOL;  
  
   (2)  capable of maintaining oneself in a normal military environment
without adversely effecting one's health and the health of others; 

   (3)  physically capable of performing useful duty in a military occupational 
specialty for which currently qualified or potentially trainable; and 

   (4)  capable of performing useful military service without due loss of time from duty for medical treatment.

15.  The Fiscal Year (FY) 2004 NDAA provided a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50 percent or greater.  This provision is referred to as CRDP.  Members retired under disability provisions (Title 10 U.S. Code, chapter 61) must have 20 years of either active duty or qualifying years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that she should be granted an exception to policy, be authorized RC Soldier's COAR status in order to obtain Sanctuary, and CRDP was carefully considered and found to be lacking in merit.

2.  She has not shown error or injustice in the actions taken by the Army in her case.  She was temporarily retired from the Army due to physical disability on 
31 December 2005 and was permanently retired on 31 December 2010.

3.  The PEB determined her condition was sufficient evidence of continued physical unfitness.  RC Soldiers on COAR status and Sanctuary Soldiers must be able to perform their assigned duties.  As a result, in accordance with Army regulations in effect at that the time of her separation, Soldiers with disabilities do not qualify for COAR or Sanctuary.

4.  In addition, the evidence of record shows a Soldier may not be retained solely to increase retirement or separation benefits.  Thus, the applicant provides insufficient evidence to show she was improperly denied COAR.

5.  The applicant was properly removed from the TDRL and she was permanently retired from the Army with a 70 percent disability rating.  The available records show that she is currently receiving compensation for a service-connected disability rated at 90 percent by the VA.

6.  The FY 2004 NDAA provided a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50 percent or greater.  This provision is referred to as CRDP.  Members retired under disability provisions (Title 10 U.S. Code, chapter 61) must have 20 years of either active duty or qualifying years of service.

7.  The applicant only had 19 years, 2 months, and 25 days of qualifying service.  Although she had a combined disability rating of 70 percent at the time she was permanently retired, she did not have 20 years of either active duty or qualifying years of service, and she was properly not retained to attain that additional time.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

____ ____  ____ ___  ________  GRANT FULL RELIEF 

_______  _________  ________  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)                                         AR20120017936





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120017936



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1