IN THE CASE OF:	

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130001499 


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, issuance of a new DD Form 214 (Certificate of Release or Discharge from Active Duty) showing his permanent disability retirement effective 24 June 2002.

2.  The applicant states:

* he was discharged on 24 June 2002 by the Army Medical Evaluation Board (MEB)
* he was given a 10 percent disability rating and separated without being transferred to the Permanent Disability Retired List (PDRL)
* on 31 June 2009, the Physical Disability Board of Review (PDBR) determined the Army made an error and granted him a 30 percent disability rating
* the Deputy Assistant Secretary of the Army (DASA) (Army Review Boards Agency) transferred him to the PDRL retroactive to 24 June 2002 effective 30 September 2009
* he needs his DD Form 214 updated to access his Post 9/11 GI Bill benefits
* the Department of Veterans Affairs (VA) will not recognize the PDBR findings for benefits 

3.  The applicant provides:

* 2 DD Forms 214
* MEB Proceedings, dated 10 May 2002
* U.S. Army Physical Disability Agency memorandum, dated 19 June 2002
* PDBR Record of Proceedings, Case Number PD0900297, dated 31 July 2009
* Army Review Boards Agency memorandum and letter, dated 30 September 2009

CONSIDERATION OF EVIDENCE:

1.  After having prior periods of service in the Regular Army and U.S. Army Reserve (USAR), the applicant enlisted in the Florida Army National Guard (FLARNG) on 9 June 1989.

2.  On 28 September 2001, he was ordered to active duty.

3.  On 5 April 2002, the applicant was given a permanent profile for lower back pain and bilateral knee degenerative joint pain and an MEB was initiated.

4.  MEB proceedings, dated 10 May 2002, show the applicant was referred to a physical evaluation board (PEB).

5.  On 5 June 2002, the PEB found the applicant unfit to perform his assigned duties and recommended a 10 percent disability rating.  Further, the applicant was advised that he had the option of accepting disability severance pay and forfeiting his Reserve Retirement or to be placed in an inactive Reserve status and receiving retired pay at the age of 60.  He was further advised that if he chose the Reserve retirement, no disability compensation would be computed.

6.  On 19 June 2002, the applicant elected to be placed in the Retired Reserve and receive retired pay at age 60.

7.  Orders Number 172-0009, dated 21 June 2002, issued by Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, TX, released the applicant from active duty effective 24 June 2002 and transferred him to the FLARNG.

8.  The applicant's DD Form 214 shows he was "release[d] from active duty" due to "completion of required active service" and transferred to his FLARNG unit on
24 June 2002.

9.  The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged on 31 December 2002 and transferred to the Retired Reserve.

10.  On 23 March 2006, the ABCMR denied the applicant's request to be medically retired with a 30 percent disability rating.

11.  On 28 July 2009, the PDBR reviewed the applicant's PEB findings and determined the Department of Defense (DOD) or Military Department regulations or guidelines relied upon by the PEB were not consistent with the VA Schedule for Rating Disabilities (VASRD) in effect at the time.  The PDBR recommended his separation be re-characterized to show a permanent disability retirement with the combined disability rating changed from 10 percent to 30 percent effective as of the date of his prior medical separation.

12.  On 30 September 2009, the DASA, Army Review Boards Agency, approved the PDBR recommendation and directed that:

* all Army records of the individual concerned be corrected as shown in the PDBR recommendation letter and record of proceedings effective the date of his medical separation
* his pay and allowances be adjusted accordingly

13.  Orders Number D-049-160, dated 18 February 2010, as amended by Orders Number D064-19, dated 5 March 2010, both issued by the U.S. Army Physical Disability Agency, Washington, District of Columbia, show the applicant was retired due to permanent disability with a 30 percent disability rating effective 31 December 2002.

14.  A letter from the PDBR, dated 10 March 2010, shows the applicant was advised he would be issued a new DD Form 214 from the Army Review Boards Agency if one was issued at the time of his medical separation.

15.  A review of the applicant's records fails to show a reissued DD Form 214.

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Active Army, ARNG, and USAR.  The regulation provides that prior to discharge or release from active duty individuals will be assigned reentry (RE) codes based on their service records or the reason for discharge.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes.  Table 3-1 includes a list of Regular Army RE codes and shows RE-4 applies to individuals ineligible for reenlistment.


17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "SFJ" is the correct code for Soldiers separating under paragraph 4-24 of Army Regulation 635-40 for permanent disability.

18.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "SFJ" had a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reissuance of his DD Form 214 showing his permanent disability retirement effective 24 June 2002 was carefully considered.

2.  A subsequent review of the applicant's PEB by the PDBR determined that provisions of DOD or Military Department regulations or guidelines relied upon by the PEB were not consistent with the VASRD in effect at the time.  Therefore, the PDBR recommended the applicant's disability rating be changed to a 30 percent disability rating.

3.  Records show the DASA, Army Review Boards Agency approved the PDBR findings and directed correction of the applicant's records to show his service was recharacterized as permanent disability retirement effective as of the date of his prior medical separation.

4.  U.S. Army Physical Disability Agency orders show the applicant was retired due to a permanent physical disability effective 31 December 2002.

5.  His DD Form 214 incorrectly shows he was released from active duty for completion of required service.  However, had the appropriate disability ratings been applied to the applicant's original PEB findings, he would have been retired for permanent disability on 24 June 2002 instead of being released from active duty.

6.  Therefore, in view of the above, the applicant's records should be corrected as indicated below.



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.  Amending his DD Form 214 ending 24 June 2002 to show:

* his type of separation as "Retirement"
* his separation authority as "Army Regulation 635-40"
* his narrative reason for separation as "Disability – Permanent Retirement"
* his separation code as "SFJ"
* his reentry code as "4"

   b.  Amending Orders Number D-049-160, issued by the U.S. Army Physical Disability Agency, dated 18 February 2010, to show 25 June 2002 as the date he was placed on the retired list and adjusting his service time accordingly.

   c.  Voiding Orders Number 172-009, issued by Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, dated 21 June 2002.

   d.  Paying him all retired pay he is due as a result of the above corrections, if any.




      _______ _   _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)                                         AR20130001499



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ABCMR Record of Proceedings (cont)                                         AR20130001499



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