BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130010945 


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 her military records to show she was retired due to physical disability.

2.  The applicant states she had served for more than 19 years when she was forced to accept a discharge with severance pay.  After the Department of Veterans Affairs (VA) garnished her severance pay, she began asking questions.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Reserve (USAR) Personnel Command ARPC Form 249-2-E (Chronological Statement of Retirement Points), dated 27 January 1998

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 16 December 1949.  On 28 September 1990, she entered active duty as a member of the USAR.  She held military occupational specialties 75H (Personnel Service Specialist, 71L (Administrative Specialist, and 74B (Software Analyst).  She was promoted to staff sergeant/pay grade E-6 on 1 October 1996.

3.  A DA Form 3349 (Physical Profile), dated 13 July 1997, states the applicant had a herniated lumbar disc.  She was issued a permanent physical profile with a rating of "3" for lower extremities.

4.  A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 23 September 1997, indicates the applicant was present.  The report states she incurred an S1 radiculopathy with a herniated disc at L5-S1 in 1995.  This condition was incurred while entitled to basic pay.  She was referred to a physical evaluation board (PEB).  The applicant indicated she did not desire to continue on active duty and agreed with the MEB findings and recommendation.

5.  A DA Form 199 (PEB Proceedings), dated 16 October 1997, states the applicant:

	a.  was found physically unfit to perform the duties of a Soldier of her rank and primary specialty.  This finding was based on her low back pain and disc herniation.  It was rated as 10-percent disabling in accordance with Department of Veterans Affairs Schedule for Rating Disabilities codes 5299 and 5295 for the conditions identified by the MEB.  The PEB recommended the applicant's separation with severance pay, if otherwise qualified;

	b.  non-concurred with the PEB findings and recommendations.  She requested a formal hearing with personal appearance and appointment of counsel; and

	c.  was informed by the PEB Liaison Officer of the findings and recommendations and explained her legal rights.

6.  On or about 6 November 1997, the applicant requested to continue her military service in the Active Reserve (i.e., continuation on active Reserve status (COAR)).  She intended to apply for an assignment of duties she could perform within the limitations imposed by her physical disabilities.

7.  She signed the DA Form 199 on 10 November 1997.  On this document she indicated that a copy of a request for continuation on active duty (COAD) was attached.

8.  On 14 November 1997, the U.S. Army PEB, Walter Reed Army Medical Center, notified the applicant that her formal hearing was scheduled for 5 December 1997.

9.  In a memorandum, dated 26 November 1997, the applicant stated that she wanted to waive the formal PEB hearing and withdraw her request to continue on active duty.

10.  On 8 February 1998, the applicant was discharged from active duty due to a physical disability with entitlement to severance pay.  Her DD Form 214 shows she completed 10 years, 2 months, and 13 days of active duty service; 19 years, 1 month, and 17 days of total military service; and 19 qualifying years for a Nonregular retirement.

11.  The applicant's ARPC Form 249-2-E shows she completed 19 qualifying years of service for retired pay at age 60.

12.  The applicant reached age 60 in 2009.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states the time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis.  The interest of both the Army and the Soldier must be considered.  A Soldier may not be retained or separated solely to increase retirement or separation benefits.  

   a.  Chapter 6 (COAD and COAR Status of Unfit Soldiers) prescribes the criteria and procedures under which Soldiers who have been determined unfit by the PDES may be COAD or COAR, as an exception to policy.  It states the primary objective of this program is to conserve manpower by the effective use of needed skills or experience.  A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation;

      (1)  paragraph 6-3 states COAD applies to officers on the active duty list, Regular Army enlisted Soldiers, and Soldiers in the AGR requesting continuation as AGR, and have more than 15 but less than 20 years of active Federal service;
   
      (2)  paragraph 6-6 states final PDES evaluation may be waived for retirement for length of service.  The Soldier must sign a waiver statement acknowledging that by foregoing final disability processing he or she is foregoing a potential disability retirement and the potential benefits related thereto (such as greater retired pay, or tax advantages, or certain other benefits pertaining); and

      (3)  paragraph 6-7 states that to be considered for COAR, a Soldier must be basically stable or have a disability that is of slow progression according to accepted medical principles.  It must not be deleterious to the Soldier’s health or prejudicial to the best interest of the Solder or the Army.  For example, the Soldier must be physically capable of performing useful duty in a military environment without the environment adversely affecting his/her health and the disability must not require undue loss of time from duty for medical treatment.

14.  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 rating of at least 30 percent and Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show she was retired due to physical disability because she completed more than 19 years of service.

2.  The evidence shows the applicant agreed with the findings of the MEB which diagnosed her with a herniated disc resulting in low back pain.  The PEB found her medical condition to be unfitting with a 10-percent disability rating.  The applicant initially non-concurred with these findings but later waived a formal hearing, thereby indicating her agreement with the PEB determination.  She was accordingly discharged with severance pay.

3.  The applicant completed a little more than 10 years of active duty service at the time of her discharge.  She had almost 9 years of inactive military service, giving her over 19 years of total military service (qualifying service for a Reserve retirement).  

4.  The applicant had initially requested to continue in the Active Reserve (COAR) within the limitations imposed by her physical disabilities.  She later indicated she was requesting COAD, and still later that she was withdrawing her request for COAD.

5.  It strongly appears that the applicant was not properly counseled concerning her requests to continue on active duty (COAD) (for which she was not eligible, having less than 15 years of active Federal Service) or to continue in the active Reserve (COAR) so she could obtain 1 more qualifying year for Nonregular retirement at age 60.  It appears she would have been eligible for COAR.

6.  While there is insufficient evidence to correct her records to show she was separated with a medical retirement, as a matter of equity the applicant's records should be corrected to show she was released from active duty and continued to serve in the USAR until she could become eligible for a Reserve retirement.

7.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding her discharge effective 8 February 1998 and showing she was REFRAD not by reason of disability and transferred to the USAR;

   b.  amending her DD Form 214 for the period ending 8 February 1998 to show in:
   
• item 23 (Type of Separation) - Released from Active Duty
• item 24 (Character of Service) - Honorable
• item 25 (Separation Authority) - Army Regulation 635-200, chapter 4
• item 26 (Separation Code) - MBK
• Item 27 (Reentry Code) - 1
• item 28 (Narrative Reason for Separation) - Completion of Required Active Service

	c.  showing she completed a total of 50 qualifying points (15 membership points, 35 inactive duty points, and 15 active duty points) during the retirement year ending 21 December 1998, thus giving her a total of 20 qualifying years for Nonregular retirement at age 60;

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

	e.  paying her all monies due based on these corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the narrative reason for separation to a medical retirement.



      __________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)                                         AR20130010945



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ABCMR Record of Proceedings (cont)                                         AR20130010945



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