IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140017968 


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, correction of his records to show he was transferred to the Retired Reserve with eligibility for retired pay at age 60 instead of discharged due to disability with severance pay. 

2.  The applicant states, in effect, he was medically discharged with severance pay; however, he does not understand why he does not have retirement status after serving 23 years in the Army National Guard (ARNG).  He further states he did not receive 180 days of extended medical care for himself and his family members as stated in his orders and he claims he no longer has exchange privileges.  He received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 15 April 2011.  However, he would like to have a military identification card and retirement orders from the ARNG.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 128-843
* Twenty-Year Letter
* Orders 055-0610
* National Guard Bureau (NGB) Form 23A (ARNG Current Annual Statement)




CONSIDERATION OF EVIDENCE:

1.  The applicant's records show his date of birth as 8 December 1963.  He enlisted in the ARNG on 9 April 1991 and served in a variety of positions in the ARNG.

2.  On 15 April 2011 while serving on active duty as a member of the ARNG, he was notified of his eligibility for retired pay upon application at age 60 via a 
20-year letter.  The applicant provides an ARNG Current Annual Statement which shows he achieved 22 years of creditable service for retired pay on 3 May 2013.

3.  On an unspecified date, he was referred to the Physical Disability Evaluation System.  His physical evaluation board (PEB) proceedings are not contained in the available records.  However, his DD Form 214 shows he was honorably discharged from active duty on 7 May 2014 due to physical disability with severance pay in the amount of $126,907.20.  

4.  During the processing of this case, on 14 April 2015, an advisory opinion was obtained from the Chief, Personnel Policy Branch, NGB.  The advisory official recommended disapproval of the applicant's request and stated:

   a.  The applicant was medically separated on 7 May 2014 from the Tennessee ARNG Active Guard Reserve program under the new Separation Program Designator Code JEB with 20 percent disability and lump sum severance pay of $126,907.20.

   b.  On 7 May 2014, the applicant signed a counseling statement for the request to be separated on this date.  The selection of separation with severance pay is not automatic, it is a choice; therefore, once the Soldier elects to accept a severance pay separation he/she waives the right to a retirement annuity.

   c.  All Army Activities Message 147-2008 3a, dated 13 June 2008, which cites Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, paragraph 4-19I(2)(c) reads, "When a Soldier has a rating of less than 30 percent and has at least 20 qualifying years for retirement for non-regular service:  "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or you may request transfer to the Retired Reserve and receive retired pay at age 60.  According to Title 10, U.S.C. Sections 1209 and 1213, (10 USC 1209 and 1213), you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve."
   d.  Orders 005-0610, dated 24 February 2014, were reviewed by the NGB Defense Enrollment Eligibility Reporting System/Real-Time Automated Personnel Identification System Office, and show the applicant is eligible for a TA-180 Transition Assistance for Military Personnel (TAMP) card with Tricare, commissary and exchange privileges.  The Tricare entitlements for the TAMP card was valid for only 180 days from 8 May to 7 November 2014.  The commissary and exchange privileges are valid for a two-year period from 8 May 2014 to 7 May 2016.

   e.  Orders 128-843, dated 8 May 2014, discharged the applicant from the ARNG and as a Reserve of the Army.

5.  On 14 April 2014, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

6.  Army Regulation 635-40 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  This regulation further states that when a Soldier has a disability rating of less than 30 percent and has at least 20 qualifying years for retirement for non-Regular service, "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-Regular service or you may request transfer to the Retired Reserve and receive retired pay at age 60.  According to Title 10, U.S. Code, sections 1209 and 1213, you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he does not understand why he does not have retirement status after serving 23 years in the ARNG.  He further states he did not receive 180 days of extended medical care for himself and his family members as stated in his orders and claims he no longer has exchange privileges.  What he requests, in effect, is correction of his records to show he was transferred to the Retired Reserve with eligibility for retired pay at age 60 instead of discharged due to disability with severance pay.

2.  However, the evidence of record shows the applicant was counseled and he requesting to be separated on 7 May 2014 from the ARNG with 20 percent disability and lump sum severance pay of $126,907.20.  The selection of separation with severance pay is not automatic, it is a choice; therefore, once the applicant elected to accept a severance pay separation he waived the right to a retirement annuity.

3.  Evidence provided by the NGB revealed the applicant was eligible for a         TAMP card with Tricare, commissary and exchange privileges.  The Tricare entitlements for the TAMP card were valid for 180 days from 8 May to                 7 November 2014.  His commissary and exchange privileges are valid for a two year period from 8 May 2014 to 7 May 2016.
  
4.  In light of the foregoing, there is no basis upon which to effect 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)                                         AR20140017968





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ABCMR Record of Proceedings (cont)                                         AR20140017968



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