IN THE CASE OF:  

		BOARD DATE:  23 July 2013

		DOCKET NUMBER:  AR20130000480 


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 his retirement orders be changed to show he was retired under the Temporary Early Retirement Authority (TERA).

2.  The applicant states:

	a.  He was eligible for retirement under TERA because he had been passed over for promotion twice and he had over 15 years of active duty service.  However, because of his medical condition he was medically retired under chapter 61 with less than 20 years.  Currently, he is 100 percent disabled but he is not eligible for concurrent receipt of both his full retired pay and Department of Veterans Affairs (VA) disability pay.  He is requesting the Board amend his retirement orders to retire him under TERA so that he can receive both full retirement pay and VA disability pay.

	b.  He was informed by representatives from the Defense Finance and Accounting Service (DFAS) and the U.S. Army Human Resources Command (HRC) that his retirement orders need to be amended to show he retired under the TERA and only the Board had the authority to change his orders.

	c.  He believes the Army thought that it was in his best interest (at the time) to medically retire him, but it turned out to be not so.  He did not want a medical retirement, he wanted a regular retirement.  As it turned out, that would have been in his best interest.


3.  The applicant provides:

* Officer Evaluation Reports for the period 1 July 1990 through 30 June 1994
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 27 March 1995 discharge orders
* 13 April 1995 reassignment orders
* 18 August 1994 reassignment orders
* undated Request for Continuation on Active Duty
* ABCMR Record of Proceedings Docket Number AR 20100010189, dated 1 April 2012
* DA Form 2-1 (Personnel Qualification Record - Part II)

CONSIDERATION OF EVIDENCE:

1.  The applicant retired as a Regular Army major with 30 percent disability effective 6 May 1995.

2.  The applicant's earlier request for this Board to grant him a 20-year retirement was denied on 1 April 2012.  The record of proceedings noted:

	a.  On 26 September 1994, a Medical Evaluation Board (MEB) diagnosed the applicant with psychotic disorder and recommended referral to a Physical Evaluation Board (PEB).

	b.  In November 1994, a PEB found him physically unfit, recommended a 
30 percent rating and the applicant be placed on the temporary disability retirement list (TDRL).  He did not concur, waived a formal hearing, and appealed noting that he would be eligible for a 20-year retirement in 9 months and that he could continue on active duty.

	c.  On 19 January 1995, the U.S. Army Physical Disability Agency (USAPDA) modified the PEB findings, rating, and disposition.  The revised PEB proceedings show the PEB diagnosed the applicant with a psychotic disorder not otherwise specified.  The PEB found the applicant unfit and recommended a rating of 
30 percent and that the applicant be retired for permanent disability.  On
3 February 1995, the applicant concurred with the agency's modification.

3.  In the processing of this case, on 12 February 2013 an advisory opinion was obtained from the Chief, Incentives and Budget Branch, Enlisted Accessions Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.  The advisory official recommended denial of the applicant's request and noted:


	a.  The applicant retired from the Army with a disability retirement on 6 May 1995.  He had 15 years, 8 months, and 2 days of service when he retired.  The TERA was offered to Soldiers with at least 15 years of service.  TERA was not offered to Soldiers who were pending a Military [Medical] Evaluation Board for potential disability retirement.  

	b.  Recommend denial of the applicant's request since he did not meet the TERA eligibility rules when he retired.

4.  On 12 February 2013, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 21 February 2013, the applicant responded by fax and noted:

	a.  He had 19 years, 9 months, and 1 day of active service when he was retired, not 15 years, 8 months, and 2 days as stated in the advisory opinion.

	b.  He cannot argue that the TERA was not authorized for him because he was pending an MEB; however, he notes that his PEB was started in November 1994 and at that time he was also informed he was passed over for promotion the second time.  An official from his branch told him they would wait for the PEB results.  He thinks he could have requested a retirement under TERA if he had known of that option.

	c.  The advisory official states that veterans with a disability retirement are not eligible for both military disability retirement and VA disability.  While this is true for veterans with less than 20 years service, it is not true if a veteran has over 
20 years of service.  It is also not true for TERA retirees, who are later given a VA disability.

5.  The applicant provided typed notes of his telephone conversations with representatives from HRC and the Fort Sam Houston Retirement Services Office, and an internet print out describing Concurrent Retirement and Disability Pay (CRDP).

6.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

7.  TERA authorized members with over 15 but less than 20 years of total active duty service to apply for early retirement.

8.  On 10 August 1993, the Army released detailed guidance on the administration of the Fiscal Year 1994 (FY94) Early Retirement Program.  The guidance states, in part, that the Temporary Early Retirement Authority (TERA) would be used to retire members whose skills were excess to the Army's short term and long term needs.  Individuals approved for early retirement under the TERA would have to depart active duty no later than 31 August 1994.  The guidance further stated that personnel who would not be medically cleared     (i.e., undergoing MEB/PEB evaluation) by the requested early retirement date (31 August 1994) were not eligible for early retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his retirement orders should be changed to show he was retired under the TERA so he can receive both full retirement pay and VA disability pay 

2.  The available evidence shows the applicant’s disability processing started around September 1994, with his MEB.  He concurred with the revised PEB proceedings, resulting in his retirement due to physical disability.  His DD Form 214 shows he retired on 6 May 1995.  He had completed 19 years, 9 months, and 1 day of active duty service.

3.  The advisory official opined that the TERA was not authorized for Soldiers who were pending an MEB for potential disability retirement such as the applicant.

4.  The applicant stated he thinks he could have requested a retirement under TERA if he had known of that option.  He may have been eligible to apply under the FY94 TERA.  However, the Army's guidance on the TERA was highly publicized and the information was published well in advance with emphasis on the criteria.  If he did not apply for that TERA is it presumed it was because he voluntarily elected to chance that he would be allowed to remain until he reached 20 years of active service.  Unfortunately, his health and his nonselection for promotion made that impossible.

5.  It then appears that if there had been a TERA in FY95 he would not have been eligible to apply for early retirement as he was not medically cleared because he was undergoing MEB/PEB processing at the time.

6.  There is no evidence that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.



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

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)                                         AR20120015570



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ABCMR Record of Proceedings (cont)                                         AR20130000480



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