IN THE CASE OF:	   

		BOARD DATE:	  19 March 2014

		DOCKET NUMBER:  AR20130009681 


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:

	a.  Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) in item 2 (Department, Component and Branch) to show the entry "Army/Active Guard Reserve (AGR)" vice " Army/U.S. Army Reserve (USAR)."

	b.  Correction of her retirement orders to show she was retired for a disability vice in accordance with (IAW) Title 10, U.S. Code (USC), chapter 61.

	c.  Correction of her DD Form 214 and retirement orders to show she received a permanent disability retirement effective 4 November 2004 vice being placed on the Temporary Disability Retired List (TDRL).

	d.  Correction of her finance records to cancel the Department of Veterans Affairs (VA) waiver/offset and reimbursement of any monies erroneously taken from her retirement pay by the Defense Finance and Accounting Service (DFAS).

2.  The applicant states, in effect:

	a.  Item 2 of her DD Form 214 incorrectly shows she was retired as a USAR Soldier; when, in fact, she served as an AGR Soldier for 365 days a year.


	b.  Her records incorrectly show she was retired IAW "chapter 61 (length of service)."  She was retired because of a physical disability and her records should be corrected to reflect the appropriate reason for her retirement.  

	c.  It is an injustice that she spent 5 years on the TDRL because she met the requirement for a 100 percent (%) disability rating.  DFAS still has not corrected this error.

	d.  IAW Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 7, the VA waiver/offset has been eliminated with no phase-in period for those who are rated 100% disabled.  

3.  The applicant provides a blue binder which included evidence tabbed A-F and other separate documents.

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 provided letters from DFAS, dated 18 June 2010, 27 July 2010, and 11 August 2010 wherein DFAS clearly explained and cited the below applicable laws:

	a.  Public Law 108-163, the National Defense Authorization Act for Fiscal Year 2004, contains provisions to restore the retired pay currently deducted from retirees' accounts due to their receipt of VA compensation, which is reflected on the Retiree Account Statements as the "VA Waiver."  This gradual restoration takes place over a 10-year period until the eligible retirees' pay is no longer offset by the amount they receive from the VA.  (This restoration of retired pay is known as Concurrent Retirement and Disability Payments (CRDP).  It is applicable to all retirees who have 20 or more years of service and a VA-rated, service-connected disability of 50% of higher.)

	b.  Title 10 USC, Section 1414 (Members eligible for retired pay who are also eligible for veterans’ disability compensation for disabilities rated higher: concurrent payment of retired pay and veterans’ disability compensation), as amended by Public Law 108-375, Section 642 states that:

		(1)  The retired pay of a member retired under chapter 61 of this title with 20 years or more of service otherwise creditable under section 1405 of this title, or at least 20 years of service computed under section 12732 of this title at the time of the member’s retirement is subject to reduction under sections 5304 and 5305 of title 38, but only to the extent that the amount of the member’s retired pay under chapter 61 of this title exceeds the amount of retired pay to which the member would have been entitled under any other provision of law based upon the member’s service in the uniformed services if the member had not been retired under chapter 61 of this title. 

		(2)  The term “current baseline offset” for any qualified retiree means the amount for any month that is the lesser of the amount of the applicable monthly retired pay of the qualified retiree for that month; and the amount of monthly veterans’ disability compensation to which the qualified retiree is entitled for that month.

3.  DFAS has correctly explained that the reduction for the VA waiver/off-set was a matter of Federal Law.  Since the ABCMR does not have the authority to overturn Federal law, the applicant's request for correction of her finance records to cancel the VA waiver/offset and reimbursement of any monies deducted from her retirement pay by DFAS will not be addressed further in this Record of Proceedings.  

4.  On 2 October 1978, the applicant enlisted in the USAR.  On 20 September 1983, she into active duty as USAR AGR Soldier.

5.  Orders Number C-06-390858, issued by HRC, on 16 June 2003, released her from active duty (non-disability) and placed her on the retired list effective 
1 September 2003.  These orders were amended in August 2003 to place her in the retired Reserve effective 1 January 2004 and twice again amended.  

6.  HRC Orders Number C-06-390888R revoked her retirement under the provisions of Title 10, USC, section 3914.

7.  The applicant's records show she underwent a Physical Evaluation Board (PEB) in 2004 and was subsequently placed on the TDRL.  Orders Number      C-09-491367, issued by HRC on 10 September 2004 state that she was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted her placement on the TDRL.

* she held the rank of SGT
* she was placed on the TDRL effective 4 November 2004
* she received a 40% percentage of disability
* she was temporarily retired
* she was retired in accordance with Title 10, USC, Section 1202
* she was credited with 21 years, 7 months, and 9 days of service for disability retirement
* She was credited with 21 years, 10 months, and 21 days of service for Title 10, USC, Section 1405 (computation of retired pay)

8.  She was honorably retired on 3 November 2004.  Her DD Form 214 shows she was retired by reason of "Disability, Temporary" IAW Army Regulation 
635-40, paragraph 4-24b(2).  Her DD Form 214 also shows in: 

* item 2 the entry "Army/USAR"
* item 12 (Record of Service) that she completed a total of 21 years, 7 months, and 
9 days of active service
* item 18 (Remarks) the entry "Percentage of Disability 40%"  

9.  She provided a letter issued by the U.S. Army PEB, Walter Reed Army Medical Center, dated 8 January 2009.  This letter informed her that the PEB had reevaluated her physical condition based on a thorough review of her most recent medical evaluation and other available medical records.  As a result of this review, the PEB recommended that she be retained on the TDRL.

10.  On 14 May 2010, the USAPDA issued a letter changing her 40% disability rating to 100%.

11.  Her record contains a DA Form 18 (Revised PEB Proceedings), dated 
14 May 2010, showing she was awarded a combined disability rating of 100%.

12.  Orders Number D139-27, issued by the U.S. Army Physical Disability Agency (USAPDA), dated 19 May 2010, show:  

* she held the rank of SGT
* she was placed on the TDRL effective 4 November 2004
* she was removed from the TDRL on 3 November 2009
* she received a 100% percentage of disability
* she was permanently retired
* she was retired in accordance with Title 10, USC, Section 1201

13.  On 14 October 2010, she was issued a DD Form 215 (Correction to DD Form 214) which amended item 18 of her DD Form 214 was corrected to show she was awarded "Percentage of Disability 100%" instead of 40%.

14.  Army Regulation 635-5 (Separation Documents), paragraph 2-4 (Completing the DD Form 214) states in item 2 of the DD Form 214 enter the component in all capitals.  Compare the Soldier's ERB/ORB to the contract, and enter the following for officers and enlisted Soldiers:

* Regular Army:  "RA"
* Army National Guard of the United States:  "ARNGUS"
* USAR:  "USAR" 
* U.S. Military Academy (USMA) cadets:  "Army-USMA-Cadet"

15.  Army Regulation 135-18 (The Active Guard Reserve (AGR) Program), Section II (Terms - AGR) states that ARNGUS and USAR personnel serving on active duty (AD) under Title 10, USC, section 12301(d) and Army National Guard (ARNG) personnel serving on full-time National Guard duty (FTNGD) under 32, USC, section 502(f) are referred to as AGR Soldiers.  

16.  Army Regulation 635-40, paragraph 4-24 (Disposition by the USAPDA) states that the USAPDA will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to PEB for clarification or reconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Paragraph 4-24b(2) of this regulation further states, based upon the final decision of USAPDA, USAPDA will issue retirement orders or other disposition instructions placing the Soldier on the TDRL (see Title 10 USC 1202 or 1205).

17.  Title 10, USC, chapter 61 (Retirement or Separation for Physical Disability):

	a.  Section 1202 (Regulars and members on active duty for more than 30 days: temporary disability retired list) states that upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the temporary disability retired list, with retired pay computed under section 1401 of this title. 
	b.  Section 1201 (Regulars and members on active duty for more than 30 days: retirement) states that upon a determination by the Secretary concerned that a member described in subsection (c) is unfit to perform the duties of the members office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in subsection (c)(3), the Secretary may retire the member, with retired pay computed under section 1401 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b).

18.  Title 10 USC, Section 3914 states that under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 3925 of this title may, upon his request, be retired.

19.  Army Regulation 635-40 states in:

	a.  Paragraph 3-9 (The TDRL) that the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The condition must be determined to be temporary or unstable.

	b.  Paragraph 4–19 (PEB decisions—common criteria) outlines the criteria for deciding the permanence of disability and states that:

		(1)  Based on accepted medical principles, a disability is "permanent", and a Soldier who is otherwise qualified will be permanently retired, if the defect has become stable so that, with reasonable expectation, the compensable percentage rating will remain unchanged during the following 5–year period.  Additionally, the compensable percentage rating is 80% or more and the disability will probably not improve so as to be ratable at less than 80% during the following 5 years.

		(2)  A Soldier is placed on the TDRL if fully qualified for permanent retirement except that the disability "may be permanent."  The Soldier may not be placed on the TDRL for any other reason.  Based on accepted medical principles, a disability will be considered as "may be permanent" if it has not stabilized, if the Soldier may recover so as to be fit for duty and/or the defect is expected to change in severity within the next 5 years so as to change the compensable percentage rating.
	c.  Paragraph 7-11 (Disposition of the TDRL Soldier) states that the USAPDA will remove a Soldier from the TDRL on the fifth anniversary of the date the Soldier’s name was placed on the list, or sooner on the approved recommendation of a PEB (periodic PEB evaluation).  If the Soldier meets the criteria below, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay if:

		(1)  The Soldier is unfit.

		(2)  The disability causing the Soldier’s name to be placed on the TDRL has become permanent.

		(3)  The disability is rated at 30% or more under the VASRD, or the Soldier has at least 20 years of active Federal service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show she was a USAR Soldier serving in an AGR status, not a regular component active duty Soldier.  Therefore, the entry in item 2 of her DD Form 214 is correct.  As such there is insufficient evidence to justify changing this entry.

2.  Her original retirement orders issued in 2003 and subsequent amendment orders show she was retired for length of service; however, these orders were later revoked and she was reinstated as a USAR AGR Soldier.  

3.  After she underwent a PEB she was issued orders placing her on the TDRL. This order and all subsequently issued orders show she was retired for medical reasons/disability.

4.  Her retirement orders, dated 19 May 2010, show she was permanently retired with a 100% percentage of disability IAW Title 10, USC, chapter 61, Section 1201.  Service members retired under this statute are retired for a physical disability, and not for length of service.  Therefore, she was retired under the appropriate statute and there is insufficient evidence to justify amending her orders.

5.  Applicable regulatory guidance states that a Soldier is placed on the TDRL if they are fully qualified for permanent retirement except that the disability "may be permanent."  This specifically applies to Soldiers with medical conditions 

determined to be unstable.  The TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  The USAPDA will remove a Soldier from the TDRL on the fifth anniversary of the date the Soldier’s name was placed on the list, or sooner on the approved recommendation of a PEB (periodic PEB evaluation).

	a.  The 2004 and subsequent 2008 PEB recommended she be placed on/remain on the TDRL because, at that time, they determined one or more of her ratable conditions to be unstable and therefore, there was a possibility that her conditions could reasonably be expected to develop into a more serious permanent disability.  The fact that her percentage of disability was later increased to 100% in 2010 does not make the 2004 or 2008 PEB's recommendation to place her on the TDRL incorrect, if the board members who review her records felt her condition or conditions may change for better or worse.  The PEB properly followed the governing regulations by placing her on the TDRL.

	b.  The retirement orders issued in 2010 show she was placed on the TDRL effective 4 November 2004 and removed from the TDRL on 3 November 2009.  Her retirement orders retroactively removed her from the TDRL; however, she would have been financially compensated for this adjustment.  Based on these dates she was on the TDRL for 5 years, which does not exceed regulatory guidance.  As such, there is no error or injustice to correct.

6.  Based on the foregoing evidence, there is insufficient evidence to grant 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)                                         AR20130009681



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ABCMR Record of Proceedings (cont)                                         AR20130009681



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