IN THE CASE OF:	  

		BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120019167 


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, correction of his records to show he was placed on the Temporary Disability Retired List (TDRL) in the rank/grade of first lieutenant (1LT)/O-2 instead of staff sergeant (SSG)/E-6.

2.  The applicant states the highest rank he satisfactorily held in the service was 1LT.  He states he held a commission for 11 years in the Maine Army National Guard (MEARNG).  He did not complete his civilian educational requirement in time for a captain's promotion board.  He was honorably discharged from the MEARNG in the rank of 1LT and then enlisted in the MEARNG.

3.  The applicant states he deployed to Iraq with his unit.  While in Iraq, he suffered several combat-related injuries and was subsequently medically evacuated.  On 1 March 2008, he was found unfit for duty and separated with severance pay in the rank of SSG.  The severance pay was calculated based on 24 years of service and 1LT pay which totaled $73,333.00.

4.  The applicant states subsequent corrections to his records resulted in:

* being issued new discharge orders
* being placed on the TDRL
* being issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty)
* being placed on the Retired List with a 60-percent disability rating as a SSG for 6 months
* deleting severance pay from his DD Form 214 and retiring him as a SSG/E-6
* DFAS possibly recouping the previously-calculated severance pay from his SSG/E-6 disability retired pay

5.  The applicant provides:

* two National Guard Bureau (NGB) Federal recognition orders
* U.S. Total Army Personnel Command (PERSCOM) memorandum
* three DA Forms 1059 (Service School Academic Evaluation Report)
* NGB Form 22 (Report of Separation and Record of Service)
* seven DA Forms 67-8 (U.S. Army Officer Evaluation Report)
* DA Form 67-9 (Officer Evaluation Report)
* NGB Form 23A (Army National Guard Current Annual Statement)

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army and in the U.S. Army Reserve (USAR), the applicant was appointed as a Reserve commissioned officer in the MEARNG on 25 July 1992 in the rank of second lieutenant (2LT)/
O-1.

2.  NGB Special Orders Number 119 AR, dated 29 September 1995, awarded the applicant Federal recognition in the rank/grade of 1LT/O-2 effective 25 July 1995.

3.  The applicant's service records do not contain any adverse information and there is no information in his service records indicating he did not serve satisfactorily in the grade of 1LT.

4.  An NGB Form 22 shows the applicant was honorably discharged from the MEARNG in the rank of 1LT effective 30 July 2003 by reason of non-selection for promotion.

5.  A DD Form 1966 (Record of Military Processing – Armed Forces of the United States) shows the applicant was authorized a waiver to enlist in the MEARNG in the rank/grade of sergeant/E-5 effective 14 January 2004.

6.  The applicant's records also show he was promoted to SSG/E-6 on 18 October 2005.  He deployed in support of Operation Iraqi Freedom from January 2006 to January 2007.

7.  His records show he sustained a medical condition that warranted his entry into the Physical Disability Evaluation System (PDES).  His records were considered by a medical evaluation board (MEB) that referred him to a physical evaluation board (PEB).

8.  A DA Form 199 (PEB Proceedings), dated 25 January 2008, shows the applicant was found unfit.  The PEB recommended a combined disability rating of 10 percent and separation with severance pay.  The document indicates he previously served in a grade higher than his current grade.  Under the provisions of Title 10, U.S. Code, section 1372, this case was to be referred to the Army Grade Determination Review Board in accordance with Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) for a grade determination of the pay grade at which he would be separated and/or retired.

9.  The document further indicates the applicant may qualify for retired pay for non-Regular service in accordance with Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service).  If so, he would have the option of accepting disability severance pay and forfeiting his Reserve retirement pay or he could be placed in an inactive Reserve status and receive Reserve retired pay at age 60 by forfeiting his disability severance pay.  If he elected transfer to an inactive Reserve status for the purpose of receiving reserve retired pay at age 60, no disability percentage would be computed.  Under the provisions of Title 10, U.S. Code, chapter 61, section 1209, he could not receive both disability benefits and retired pay for non-Regular service.  The PEB found the applicant unfit and recommended a combined disability rating of 10 percent and separation with severance pay.

10.  Orders 053-0271, Headquarters, U.S. Army Garrison, Fort Bragg, NC, dated 22 February 2008, transferred the applicant to the U.S. Army Transition Center on 22 February 2008 for the purpose of out-processing and discharging him by reason of disability with severance pay in the rank of SSG effective 1 March 2008.  Additional instructions show the following:

* percentage of disability – 10 percent
* authorized disability severance pay in the grade of E-6

11.  The applicant's military service records contain an NGB Form 22 showing he was honorably discharged from the MEARNG and transferred to the Retired Reserve effective 1 March 2008.

12.  The applicant was honorably discharged on 1 March 2008 by reason of disability with severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at that time shows in:

* item 4a (Grade, Rate or Rank) – "SSG"
* item 18 (Remarks) – "DISABILITY SEVERANCE PAY – $73,337.00"
* item 23 (Type of Separation) – "DISCHARGE"
* item 25 (Separation Authority) – "AR 635-40, PARA 4-24B(3) [Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3)]"
* item 26 (Separation Code) – "JFL"
* item 27 (Reentry Code) – "3"
* item 28 (Narrative Reason for Discharge) – "DISABILITY, SEVERANCE PAY"

13.  On 9 March 2010, the applicant requested a Physical Disability Board of Review (PDBR).  On 1 September 2010, the PDBR recommended correction of the applicant's military service records to show he was placed on the TDRL with a combined disability rating of 60 percent for a period of 6 months and separation with a combined disability rating of 20 percent rather than 10 percent upon final disposition.

14.  On 27 September 2010, the Deputy Assistant Secretary of the Army (DASA) for Army Review Boards approved the PDBR recommendations.

15.  The DASA directed that all Department of the Army records of the applicant be corrected by:

	a.  amending his separation document to show he was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay;

	b.  issuing orders showing he was separated with a permanent combined rating of 20 percent effective the day following the 6-month TDRL period with no re-characterization of his separation; and

	c.  adjusting his pay and allowances accordingly.

16.  Orders 319-0276, Headquarters, U.S. Army Garrison, Fort Bragg, NC, dated 15 November 2010, show the applicant was retired by reason of temporary disability on 1 March 2008 and he was placed on the TDRL effective 2 March 2008 in the rank of SSG.  Additional instructions show:

* retired grade of rank – E-6
* percentage of disability – 60 percent
* retirement type and allotment code – temporary disability/6
* statute authorizing retirement – Title 10, U.S. Code, section 1202
* other eligible laws – Title 10, U.S. Code, section 1372

17.  Orders 319-0277, Headquarters, U.S. Army Garrison, Fort Bragg, NC, dated 15 November 2010, revoked Orders 053-0271, dated 22 February 2008.

18.  Orders 322-17, U.S. Army Physical Disability Agency, dated 18 November 2010, show the applicant was removed from the TDRL and discharged from the service with severance pay due to permanent physical disability in the rank of SSG with a disability rating of 20 percent effective 1 September 2008.

19.  A DD Form 215, dated 15 May 2013, corrected his DD Form 214 by:

* deleting from item 18 – "DISABILITY SEVERANCE PAY – $73,337.00"
* adding to item 23 – "RETIREMENT"
* adding to item 25 – "AR 635-40, PARA 4-24B(2)"
* adding to item 26 – "SFK"
* adding to item 27 – "4"
* adding to item 28 – "DISABILITY, TEMPORARY"

20.  There are no orders in the applicant's service records that show he was placed on the Retired List after he was removed from the TDRL.

21.  Title 10, U.S. Code, section 1372 (Grade on Retirement for Physical Disability:  Members of Armed Forces) states that unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the TDRL under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

	a.  the grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired;

	b.  the highest temporary grade or rank in which he served satisfactorily as determined by the Secretary of the Armed Force from which he is retired;

	c.  the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; or

	d.  the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

22.  Department of Defense Financial Management Regulation, volume 7A (Grade at Which Disability Severance Pay is Computed) states to compute severance pay on the basic pay of the following highest grade or rank described:

* the grade or rank in which the member is serving at separation 
* the permanent Reserve grade held at separation 
* the highest temporary or permanent grade or rank in which member served satisfactorily as determined by the Secretary of the Military Service concerned
* for those selected for promotion, if the disability is found during a physical examination, then the grade or rank to which the member would have been promoted if there were no disability

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was retroactively placed on the TDRL effective 2 March 2008.  Effective 1 September 2008, he was removed from the TDRL and discharged from the service with severance pay because of permanent physical disability.  Although he indicates he is now receiving "disability retirement pay," there is no evidence showing he was placed on the Retired List.  It appears he may be referring to Department of Veterans Affairs benefits.

2.  He held the rank/grade of SSG/E-6 at the time he was placed on TDRL.  However, he had previously served satisfactorily in the rank/grade of 1LT/O-2.  By law, he is entitled to the grade equivalent to the highest grade or rank in which he served satisfactorily as determined by the Secretary of the Army.

3.  Therefore, Orders 319-0276, dated 15 November 2010, should be amended to show the applicant was retired by reason of temporary disability on 1 March 2008 and placed on the TDRL effective 2 March 2008 in the rank/grade of 1LT/O-2.

4.  Orders 322-17, dated 18 November 2010, should be amended to show the applicant was removed from the TDRL and discharged from the service in the rank/grade of 1LT/O-2.

5.  It appears the applicant may have been paid severance pay calculated for the rank/grade of SSG/E-6 when he was removed from the TDRL and discharged with severance pay.  He should have been paid severance pay calculated for the rank/grade of 1LT/O-2 under the provisions of Title 10, U.S. Code, section 1372. 
It would be appropriate to pay him any additional monies he may be due as a result of the corrections recommended below.

BOARD VOTE:

___x____  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

* amending Orders 319-0276 to show he was placed on the TDRL in the rank/grade of 1LT/O-2
* amending Orders 322-17 to show he was removed from the TDRL and eligible for severance pay in pay grade O-2
* paying him any additional monies he may be due as a result of these corrections



      ____________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)                                         AR20120019167



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ABCMR Record of Proceedings (cont)                                         AR20120019167



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