IN THE CASE OF:
BOARD DATE: 18 November 2014
DOCKET NUMBER: AR20140002683
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 that his retirement by reason of permanent disability be changed to a non-regular retirement.
2. The applicant states that he is unable to receive his Reserve Retirement for his years of service through concurrent retirement and disability pay (CRDP) because he did not have 20 years of active duty service and he was not allowed to retire from the reserves because he was deemed unfit for service. He was also never allowed to retire due to years of service.
3. The applicant provides a letter from the U.S. Army Human Resources Command (HRC), a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), retirement orders, physical evaluation board (PEB) proceedings, his 20-Year Letter, and mobilization orders.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving as an enlisted Soldier in the U.S. Army Reserve (USAR), in the rank/grade of sergeant first class/E-7, when he was ordered to active duty on 1 August 2005 in support of Operation Enduring Freedom (OEF).
2. On 21 July 2011, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), which notified him that he had completed the required years of qualifying Reserve service and was eligible to apply for retired pay (non-regular) at age 60 (July 2016). Paragraph 2 of his notification also advised him that he would not be entitled to retired pay under Title 10, U.S. Code, section 12731, if he was now or later became entitled to retired pay from an armed force under any other provision of law, or to retainer pay as a member of the Fleet Reserve or Fleet Marine Corps Reserve. This also includes, but is not limited to, severance pay elected under Title 10, U.S. Code, Chapter 61, as part of a medical disability review.
3. On 13 May 2013, he was retired under the provisions of Army Regulation 635-40, chapter 4, by reason of disability, permanent (enhanced).
4. The letter he provided from HRC is dated 24 January 2014 and informs him that because he was permanently retired by reason of disability, he was no longer eligible for retired pay at age 60.
5. Title 10, U.S. Code, section 1209 gives Reservists who are eligible for a Reserve retirement at age 60, and who get less than a 30% disability rating, the option of accepting severance pay or their Reserve retirement.
DISCUSSION AND CONCLUSIONS:
1. The applicantÂ’s contention that his retirement by reason of permanent disability should be changed to a non-regular retirement has been noted.
2. Since he was retired for permanent disability (as opposed to being offered disability severance pay), by law he was not eligible for a non-regular retirement.
3. Accordingly, he was properly retired by reason of permanent disability and there is no error or injustice in his case or basis to grant his request.
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) AR20140002683
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ABCMR Record of Proceedings (cont) AR20140002683
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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