IN THE CASE OF:	

		BOARD DATE:	    23 January 2014

		DOCKET NUMBER:  AR20130005967 


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 correction of his records to show he was transferred to the Retired Reserve instead of having been retired for permanent disability.

2.  The applicant states:

* in January 2003, he was a mobilized U.S. Army Reserve (USAR) Soldier serving in Kuwait
* he started having respiratory problems and was diagnosed with Chronic Obstructive Pulmonary Disease (COPD) and was sent back to Fort Polk, LA, for a medical evaluation board (MEB)
* on 25 December 2003, he was placed on the Temporary Disability Retired List (TDRL) and removed from the TDRL on 17 May 2007
* his option of transferring to the Individual Ready Reserve in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24, was never discussed
* he contacted the U.S. Army Physical Disability Agency (USAPDA) and was told this agency could not correct or reopen his records and was only able to provide documentation
* his 30-year retirement as a USAR Soldier was cancelled by retiring as an active Soldier with 11 years of service
* the difference in pay would be $900 per month


3.  The applicant provides:

* self-authored statement
* Orders Number M-363-0751, issued by Headquarters, 377th Theater Support Command, New Orleans, LA, dated 29 December 2002
* Orders Number 282-0359, issued by Headquarters, Joint Readiness Training Center and Fort Polk, Fort Polk, LA, dated 9 October 2003
* Orders Number D138-10, issued by USAPDA, dated 17 May 2007
* printout of a retired pay calculation from a U.S. Army Human Resources Command (HRC) website
* Chronological Statement of Retirement Points, dated 20 November 2012
* Retiree Account Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 was born on 29 May 1953.

3.  After having prior honorable enlisted service in the Regular Army and USAR, the applicant accepted an appointment in the USAR as a warrant officer one on 13 November 1992.  

4.  On 19 December 1994, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This memorandum notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

5.  On 29 July 1999, the applicant was placed in the Retired Reserve.

6.  On 2 January 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom. 
7.  A DA Form 3349 (Physical Profile), dated 15 May 2003, shows the applicant was given a permanent profile for COPD and referred to an MEB.

8.  Records show the applicant was not pending any adverse action or flagged.  In a letter, dated 26 June 2003, the applicant's commander stated his performance was on the level expected of an officer of his rank; however, his diagnosed asthma and COPD rendered him unable to continue as a Soldier and as a result, he was declared non-deployable and separation procedures began.

9.  On 24 June 2003, an MEB found the applicant to be medically unacceptable and referred him to a PEB for COPD and bronchial asthma.

10.  On 10 July 2003, the applicant agreed with the findings and recommendation of the MEB.  He indicated that he did not desire to continue on active duty and signed a Texas PEB Fact Sheet which made no reference to an option to opt out of a disability retirement and retain the right to retired pay at age 60.

11.  On 25 August 2003, an informal PEB found the applicant unfit for duty for COPD with a 30 percent (%) disability rating and recommended that the applicant be placed on the TDRL with a reexamination during September 2004.  The applicant concurred with the findings and recommendation of the PEB.  On 
4 September 2003, the PEB findings and recommendations were approved.

12.  Orders Number 282-0359, dated 9 October 2003, show the applicant was retired on 24 December 2003 and placed on the TDRL on 25 December 2003.

13.  On 1 May 2007, the PEB found the applicant's condition of COPD sufficiently stable for final adjudication and recommended a disability rating of 30% and permanent retirement.

14.  On 3 May 2007, the applicant concurred with the findings and recommendation of the PEB and waived his rights to a formal hearing.  His DA Form 199 (PEB Proceedings) for this period does not contain his counselor's signature.

15.  On 17 May 2007, the findings and recommendations of the PEB were approved.

16.  Orders Number D138-10, dated 17 May 2007, show the applicant was removed from the TDRL on 17 May 2007 and retired due to a permanent physical disability with a 30% disability rating.

17.  The applicant provides a self-authored statement; orders; a printout of a retired pay calculation from an HRC website showing the site calculated he could anticipate receiving $2,587.35 per month upon reaching age 60 in 2013; a Retiree Account Statement; a copy of his DD Form 214 for his period of service ending 24 December 2003; and a Chronological Statement of Retirement Points, dated 20 November 2012, which shows he has a total of 30 years, 6 months, and 21 days of qualifying service for retirement with 5,788 total points creditable.

18.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a.  A Soldier will be referred to the Physical Disability Evaluation System (PDES) if the unfitness is of such a degree that the Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  

	b.  A PEB liaison officer (PEBLO) is appointed to counsel Soldiers undergoing physical disability processing.  The PEBLO is responsible for counseling Soldiers, next-of-kin, or legal guardian in appropriate cases concerning their rights and privileges at each step in the disability evaluation.  Counseling will be documented and, as a minimum, cover: legal rights, effects and recommendations of the MEB and PEB findings, estimated disability retired or severance pay (after receipt of PEB findings and recommendations), probable grade upon retirement, potential veteran's benefits, recourse to and preparation of rebuttals to the PEB findings and recommendations, Disabled Veterans Outreach Program, post-retirement insurance programs, and Survivor Benefit Plan.

	c.  Paragraph 4-24 provides the procedures followed by HRC for the final disposition of PDES cases.  It states, in pertinent part, that a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer as described in paragraph 8-9, will be transferred to the Inactive Reserve on the Soldier’s request.  

19.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.

20.  Title 10, U.S. Code, section 1209 (Transfer to inactive status list instead of separation) states any member of the armed forces who has at least 20 years of service computed under section 12732 of this title, and who would be qualified for retirement under this chapter but for the fact that his disability is less than 30% under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination, may elect, instead of being separated under this chapter, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive retired pay under section 12739 of this title upon becoming 60 years of age.

21.  The Military Compensation website maintained by the Office of the Under Secretary of Defense for Personnel and Readiness provides information on the formulas used to calculate the various types of retired pay.  The website provides the following information on disability retirement.

	a.  Disability retirement is sometimes called Chapter 61 retirement, since the law governing such a retirement is in Chapter 61 of Title 10, U.S. Code.  Members who have been determined to be unfit for duty with a disability rated by the military Service as 30% or greater are eligible for disability retirement.  A member whose condition is not stable may be placed on the TDRL for up to 
5 years at which point they must be discharged, retired or returned to duty.  Members whose condition has stabilized at a disability rating of 30% or higher may be placed on the PDRL.

	b.  The basic retirement formula is:  Retired Pay Base X Multiplier %.

	c.  The retired pay base for a qualified disability retirement is determined under either the final pay method (for those who entered military service before 8 September 1980) or the high-36 month method (for those who entered military service on or after 8 September 1980).  

	d.  The multiplier percentage is at the option of the member who may chose either the percentage of disability assigned or the years of creditable service times 2 1/2%.  In either case, the multiplier is limited to 75% by law.  In the case of a member on the TDRL, the minimum percentage is 50% while on the TDRL.

	e.  The years of creditable service for computation of the retired pay percentage multiplier include all active duty and all credited Reserve points divided by 360. 

22.  The Military Compensation website provides the following information on Reserve retirement.

	a.  Members who accumulate 20 or more years of qualifying service are eligible for Reserve retirement when they reach age 60 or, in some cases, a lesser qualifying age.  There are two non-disability retirement plans currently in effect for Reserve qualified retirees.  These are the Final Pay plan and High-36 Month Average plan.  

	b.  The basic retirement formula is:  Retired Pay Base X Multiplier %.

	c.  The retired pay base for a qualified Reserve retirement under the final pay plan is the monthly basic pay determined at the rates applicable on the day of retirement at the highest grade satisfactorily held during service.  In other words, it is the rate of pay for the member's pay grade and years of service taken from the pay table in effect on the date that retired pay begins, regardless of when the member stopped participation (i.e., went into the gray area).

	d.  The final pay plan (applicable to the applicant) uses a multiplier % that is 2 1/2% times the years of creditable service.  The creditable years of service for a Reserve retirement calculation are determined by the sum of all accumulated Reserve points divided by 360.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant had already received a 20-Year Letter, he was ordered to active duty.  While in this status, he was found unfit for duty and processed through the PDES.  He was subsequently retired for permanently disability with a 30% rating.

3.  Although he believes he was miscounseled during his PDES processing, there are no provisions of law or regulation applicable to his situation that would have allowed him to request transfer to the Retired Reserve once he was found unfit.  Had he received a disability rating of less than 30%, he would have had the option of accepting severance pay or transferring to the Retired Reserve and receiving retired pay at age 60.  

4.  The evidence of record shows he was properly counseled throughout his PDES processing and he concurred with the findings and recommendations.

5.  He believes there would have been a $900 difference in his pay if he had been able to defer receipt of retired pay until he reached age 60.  This may be true based on the higher pay rates in effect when he reached age 60 in 2013; however, he should note that he enjoyed the various benefits of being on a retired list, including receipt of retired pay based on the retirement points he earned, for approximately 10 years prior to reaching age 60.  Further, what he might have been eligible for at age 60 does not change the fact that no provision of law or regulation authorized his transfer to the Retired Reserve in lieu of permanent disability retirement. 
6.  The applicant has failed to show error or inequity in his PDES processing; therefore he is not entitled to the 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)                                         AR20130005967



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ABCMR Record of Proceedings (cont)                                         AR20130005967



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