BOARD DATE:  5 August 2014

		DOCKET NUMBER:  AR20130021232


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 placement on the Temporary Disability Retirement List (TDRL).

2.  The applicant states:

	a.  He was not put on the TDRL when he was separated for disability.  He does have a 20-year letter.  He wants to have identification card privileges and be able to receive retired pay at age 60.

	b.  He served over 23 years with an honorable discharge, but he did not get an explanation when he was discharged that he would not be eligible for a military identification card or benefits by receiving separation pay.  He was not told that by receiving severance pay he waived his rights to benefits.

	c.  He never considered going to the commissary or using exchange services until recently.  He contacted the Defense Enrollment Eligibility Reporting System (DEERS) office and was told he was not eligible for an identification card.  He never thought he would have this problem or have a problem receiving retired pay at age 60, being a 23 year plus honorably-discharged veteran.

3.  The applicant provides copies of his:

* U.S. Army Reserve (USAR) Personnel Command, letter, Subject:  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) 


* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated
27 April 2004
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
10 May 2004
* 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.  Following prior service in the Regular Army, the applicant enlisted in the USAR on 22 August 1992.  He held military occupational specialty 42A (Personnel Administration Specialist).

3.  He last served on active duty from 3 January 2003 to 20 November 2004.

4.  A 5 November 2003, a USAR Personnel Command 20-year letter informed the applicant he had completed the required years of qualifying service and was eligible for retired pay on application at age 60 in accordance with Title 10, U.S. Code, Chapter 1223.

5.  His date of birth is 26 October 1961 and he will reach age 60 on 26 October 2021.

6.  The 27 April 2004 MEB Proceedings shows the applicant's conditions of degenerative joint disease, right knee with chondromalcia patella and patellofemoral syndrome, and degenerative disc disease of lumbar spine were medically unacceptable.  The board recommended referral to a PEB.  The proceedings were approved and the applicant agreed with the findings and recommendation.

7.  A PEB convened on 10 May 2004.  The DA Form 199 shows the applicant was found unfit for continued military service by reason of chronic pain, right knee and chronic low back pain, without neurologic abnormality.  The board recommended a combined rating of 20% and separation with severance pay.  The applicant concurred and waived a formal hearing on his case.

8.  On 12 May 2004, he elected the option to be discharged with entitlement to receive disability severance pay, pursuant to Title 10, U.S. Code section 1212.  The other option offered was to be transferred to the Retired Reserve pursuant to Title 10, U.S. Code section 1209, with entitlement to apply for retirement benefits upon reaching age 60.

9.  Orders 322-0312, Headquarters, Joint Readiness Training Center and Fort Polk, dated 17 November 2004, show the applicant was to be discharged effective 20 November 2004 with disability severance pay.

10.  On 20 November 2004, he was honorably separated with disability severance pay as a sergeant first class (SFC)/E-7.  He had completed 
1 year, 10 months and 18 days during the period covered by the DD Form 214 with 8 years, 9 months, and 23 days of prior active duty service and 12 years, 
1 month, and 1 day of prior inactive service. 

11.  He provided copies of:

	a.  The Texas PEB Fact Sheet, which states under Disability Ratings:  "Severance Pay is NOT a medical retirement.  If separated with severance pay, the Solider will not receive retirement or be entitled to future military benefits."  He signed indicating he had read and understood the information in the fact sheet

	b.  PEBLO Counseling Checklist/Statement, Bayne Jones Army Community Hospital, Fort Polk, LA, showing he was counseled concerning disability retirement and severance pay.

12.  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 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separations) provides in paragraph 7-2 that a Soldier's name may be placed on 


the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10 U.S, Code section 1201 but for the fact that his disability is determined not to be of a permanent nature and stable.

14.  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 he should have been placed on the TDRL.  He contends he was not informed that when he elected separation with severance pay he was waiving his rights to benefits.

2.  He was separated with a disability rating of 20 percent.  The PEB Proceedings show the board recommended his separation with severance pay and he concurred.  He was not eligible to be placed on the TDRL.

3.  The available evidence shows he elected to be separated with severance pay in lieu of the option to request transfer to the Retired Reserve with entitlement to apply for retirement benefits upon reaching age 60.

4.  The available evidence also shows he was counseled that if separated with severance pay he would not receive retirement or be entitled to future military benefits. 

5.  In view of the foregoing, there is no basis for granting applicant's 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 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)                                         AR20120015570



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ABCMR Record of Proceedings (cont)                                         AR20130021232



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