IN THE CASE OF:	  

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130004167 


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 her records to show she was transferred to the Retired Reserve with eligibility for retired pay at age 60 instead of discharged due to disability with severance pay.

2.  She states she had over 20 years of creditable service for retirement at the time of her separation and she should have been transferred to the Retired Reserve and ultimately retired when she reached age 60.  Her disability rating of 80 percent was recently upgraded to 100 percent by the Department of Veterans Affairs (VA).  She is not enrolled in the Defense Enrollment Eligibility Reporting System, which prevents her from utilizing TRICARE in order to receive medical treatment for her numerous service-connected disabilities.

3.  She provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Headquarters, 63d Regional Support Command, Moffett Field, CA, Orders 10-081-00006, dated 22 March 2010
* U.S. Army Human Resources Command (HRC), St. Louis, MO, Orders P07-949274, dated 27 July 2011

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 records show her date of birth as 26 January 1952.  She enlisted in the U.S. Army Reserve (USAR) on 29 May 1984 and served in a variety of positions in the USAR.

3.  On 30 June 2004 while serving on active duty as a member of the USAR, she was notified of her eligibility for retired pay upon application at age 60 via a 
20-year letter.

4.  On 15 July 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  She served in Kuwait and Iraq from 3 December 2005 through 20 January 2006.

5.  On an unspecified date, she was referred to the Physical Disability Evaluation System.  Her physical evaluation board (PEB) proceedings are not contained in the available records.  However, her DD Form 214 shows she was honorably discharged from active duty on 25 October 2006 due to physical disability with severance pay in the amount of $51,044.40 based upon over 22 years of service. 

6.  On 22 March 2010, Headquarters, 63d Regional Support Command, published Orders 10-081-00006 which released her from her Reserve unit and reassigned her to the Retired Reserve effective 1 February 2007.  The reason for this action was cited as "medically disqualified – not result of own misconduct."

7.  On 27 July 2011, HRC published Orders P07-949274 which show she was to be retired and placed on the Retired List effective 26 January 2012 in the rank/grade of first sergeant/E-8.  The additional instructions portion of these orders advised the applicant to contact her support Retirement Services Office (RSO) and make an appointment for a retirement briefing and the issuance of new identification cards.  She was further advised that all RSO's are listed in the Army Echoes magazine or online at:  http://www.armyg1.army.mil/retire.  She was instructed to contact them to make an appointment and to determine what documents must be presented to obtain service.  She was also advised she may contact TRICARE concerning health insurance by calling their toll-free number, 1-800-444-5445, or using their webpage at:  https://www.tricare.osd.mil/.

8.  On 7 September 2011, HRC published Orders P09-94-940582R which revoked the aforementioned Orders P07-949274, dated 27 July 2011.  The reason cited for revoking her retirement orders was that she had received disability severance pay.

9.  The applicant's HRC ARPC Form 249-E (Chronological Statement of Retirement Points), dated 25 September 2013, shows she had 22 years, 8 months, and 2 days of qualifying service for retirement as of 30 January 2007.

10.  On 5 December 2013, an ABCMR analyst contacted the applicant to advise her that although she had completed the required years to be eligible for retired pay, the fact that she had received disability severance pay meant she had to decide which was most advantageous to her because statute prevents her from being entitled to both.  She was further advised that if she elected to be retired, she would have to repay the disability severance pay until the entire amount was recouped.  The applicant stated she understood and that she would prefer to receive retired pay in lieu of disability severance pay.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.

12.  Army Regulation 635-40 states that when a Soldier has a disability rating of less than 30 percent and has at least 20 qualifying years for retirement for non-Regular service, "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."

13.  Army Regulation 635-40 states the findings and recommendations of the informal PEB are recorded on a DA Form 199 (PEB Proceedings).  Appendix D provides instructions for completing this form.  The Soldier will complete item 13 (Election of Member) by placing a checkmark in the appropriate item indicating his or her election after the informal findings and recommendations and sign and date the form.  The legal counsel or PEB Liaison Officer (PEBLO) who informs the Soldier of the PEB's findings and recommendations and her available options will sign item 14 (Counselor's Statement).



14.  A service member discharged with severance pay cannot be transferred to the Retired Reserve.  A member cannot be retired from a discharge with severance pay status.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, stated the SPD code "MFR" would be used when the reason for separation was involuntary discharge due to "physical disability – other."

16.  The SPD code "MFR" was used for service members who qualified for physical disability with severance pay and qualified for retirement at age 60 and elected to receive Reserve retired pay in lieu of severance pay.

17.  When the SPD code "MFR" is used, the statement, "The Soldier has been separated by reason of physical disability and has selected Reserve retirement in lieu of severance:  no severance pay is authorized," will be entered in item 18 (Remarks) of the DD Form 214.

18.  Public Law 92-425, the Survivor Benefit Plan (SBP), enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

19.  Public Law 95-397, the Reserve Component (RC) SBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically converts to SBP coverage.  If RCSBP option B or C is elected, there is a Reservist portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was issued her 20-year letter on 30 June 2004.  By law, members of the RC who complete at least 20 years of qualifying service are eligible to receive retired pay upon application at age 60.
2.  Although the applicant's PEB proceedings were not available for review, her DD Form 214 verifies she was authorized disability severance pay based on over 22 years of service.

3.  The evidence of record confirms that her processing through the Army's Physical Disability Evaluation System ultimately led to her discharge from active duty by reason of physical disability with severance pay on 25 October 2006.

4.  The evidence of record confirms she was originally eligible to elect non-Regular retirement instead of separation with severance pay at the time of her disability separation in 2006.  It appears she may not have fully understood her options and/or been given the opportunity to elect retired pay in lieu of disability severance pay.

5.  In view of this possibility, an ABCMR analyst contacted the applicant and explained that she had to decide which was most advantageous to her because statute prevents her from being entitled to both.  The applicant stated she understood and that she would prefer to receive retired pay in lieu of disability severance pay.

6.  In view of the foregoing, it would be appropriate and serve the interests of justice and equity to correct her records by voiding her 30 August 2006 disability discharge with severance pay and showing she was transferred to the Retired Reserve on that same date.

7.  Further, she should be required to repay the disability severance pay in installments until the entire amount is recouped.

8.  Whichever RCSBP election, if any, she made upon receipt of her 20-year letter in 2004 remains valid.

9.  In view of the foregoing, the applicant's record should be corrected to show she elected Reserve retirement in lieu of severance pay as follows:

	a.  amending her DD Form 214 and/or any related documents to show she was separated due to "physical disability – other" and assigned SPD code "MFR";

	b.  adding the statement, "The Soldier has been separated by reason of physical disability and selected Reserve retirement in lieu of severance:  no severance pay is authorized," to item 18 of her DD Form 214;

	c.  showing she was transferred to the Retired Reserve with entitlement to retired pay as of the date of her 60th birthday, 26 January 2012; and

	d.  having the Defense Finance and Accounting Service fully audit the applicant's pay records, coordinating with the VA to determine any monetary amount the applicant is entitled to as a result of the above corrections, and contacting the applicant to coordinate a schedule for any repayment of the remaining disability severance pay.

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:

	a.  amending her DD Form 214 for the period ending 25 October 2006 and/or any related documents to show she was separated due to "physical disability – other" and assigned SPD code "MFR";

	b.  adding the statement, "The Soldier has been separated by reason of physical disability and has selected Reserve retirement in lieu of severance:  no severance pay is authorized," to item 18 of her DD Form 214 for the period ending 25 October 2006;

	c.  showing she was transferred to the Retired Reserve with entitlement to retired pay as of the date of her 60th birthday, 26 January 2012;






	d.  showing she applied for retired pay in a timely manner to be effective upon reaching age 60; and 

	e.  paying her any retired pay 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)                                         AR20130004167



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ABCMR Record of Proceedings (cont)                                         AR20130004167



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