IN THE CASE OF:	   

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20140019140 


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 a 20-year Regular Army retirement with maximum medical disability (100 percent) which would qualify her for concurrent retirement and disability pay.

2.  The applicant states:

	a.  The battalion to which she was assigned was not understanding nor helpful throughout her entire medical ordeal.  She was not assigned to the Warrior Transition Unit nor did she receive transition leave or regular leave upon her retirement.

	b.  Two senior officers treated her like a number in her unit.  They made her situation much worse by constantly inquiring about when she could return to work.  

	c.  Her medical problems began in September 2008 while she was training to run her sixth Army ten miler competition.  Her right leg joints and her lower back caused her tremendous amounts of pain until finally her right leg gave away while finishing an Army Physical Fitness Test in April 2009.  

	d.  She was rushed to a civilian hospital, treated, and told to follow up with her family care physician.  Her physician ordered various tests and she was eventually diagnosed with adult polycystic kidney disease, radiculopathy in the lower back, osteoarthritis, cysts in her ovaries, major depressive disorder, and anxiety disorder.  She has since had her right hip replaced.
	e.  She had so much pressure on her that she felt she was forced to take 60 days of leave so that the phone calls and emails would temporarily stop.  If she had not taken leave this ordinary leave she would have had a total of 110 days of leave and had she been allowed to take transition leave, she would have had enough time to retire at the 20-year mark (sufficient service for retirement).

	f.  She was told on several occasions that "we need a working Soldier" and "you are holding a billet slot so we cannot request additional personnel to replace you" and "what is your status?"

	g.  The psychological impact of the actions taken against her by superior officers along with her physical and medical situations greatly impaired her way of life and mental capacity.  She had episodes of suicidal ideation.  She had been a runner since she was 11 years old and to be told she couldn't run again was a devastating blow.

	h.  She was a great Soldier and she did not deserve to be treated in that manner.

3.  The applicant provides:

* self-authored statement (undated)
* seven Officer Evaluation Reports (OERs), dated from 19 June 2003 through 26 May 2009
* five Service School Academic Evaluation Reports
* leave information
* email communications
* Calculation of Active Duty Time
* medical information
* miscellaneous information

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Regular Army (RA), the applicant accepted an appointment as a second lieutenant (O-1) in the U.S. Army Reserve (USAR) on 10 January 2003.  She was ordered to active duty for a 3-year period effective the date of her acceptance.  She was promoted to the rank of first lieutenant on 10 July 2004.

2.  After completing 3 years, 3 months, and 25 days of net active service this period, the applicant was honorably discharged on 4 May 2006, due to miscellaneous/general reasons.
3.  On 6 June 2006, she accepted an appointment in the USAR in the rank of captain (O-3).  She was ordered to active duty on 28 August 2006 in the Active Guard Reserve (AGR).

4.  The applicant's medical evaluation board (MEB) proceedings are not available for the Board’s review.  However, the available records show that on 4 August 2011 a physical evaluation board (PEB) convened to determine her fitness for retention in the AGR program.  The PEB diagnosed her with the following conditions:

* major depressive disorder and anxiety disorder, not otherwise specified (also claimed as insomnia and short term memory loss) with a disability rating of 70 percent
* lumbar spondylosis and facet arthropathy with intermittent tingling (claimed as lumbago, mid lower back injury, facet syndrome, chronic pain syndrome, sciatica, neuropathy, and radiculopathy) with a disability rating of 10 percent
* polycystic kidney disease with chronic kidney disease stage L with a disability rating of 0 percent (Department of Veterans Affairs proposed rating decision)
* migraine syndrome; vaginal hysterectomy; acid reflux; spastic colon; goiter; plantar fasciitis; "S/P PRK with good visual results; B/L peripheral retinopathy" which met medical retention standards 

5.  The PEB concluded that the applicant's medical conditions prevented satisfactory performance of duty in her grade and specialty and that she should be placed on the temporary disability retired list (TDRL).  She concurred with the PEB's findings and she waived her right to a formal hearing of her case on 17 August 2011. 

6.  On 3 November 2011, the U.S. Army Human Resources Command issued the applicant her notification of eligibility for retired pay at age (60 otherwise known as the 20-Year Letter).  This letter informed the applicant that she had completed the required years of qualifying Reserve service and was eligible for retired pay on application at age 60 in accordance with Title 10, U.S. Code, chapter 1223 (section 12731).  

7.  On 17 November 2011, the applicant was released from active duty and she was placed on the TDRL on the following day with a combined disability rating of 70 percent.  She had 19 years, 7 months, and 10 days of net active Federal service.

8.  A PEB convened on 10 September 2014 to determine if the applicant should be permanently retired.  The PEB diagnosed the applicant with the following conditions:

* major depressive disorder with a 70 percent disability rating
* degenerative arthritis of the thoracolumbar spine with a 20 percent disability rating
* cystic disease of the kidneys with a 0 percent disability rating
* migraine syndrome, vaginal hysterectomy, acid reflux, spastic colon with constipation, goiter, left plantar fasciitis, "S/P PRK," and peripheral retinopathy, not ratable
* degenerative joint disease right hip, and ovarian cysts, which were not compensable because they were not caused by the unstable, unfitting conditions (or its/their treatment) for which she was placed on the TDRL

9.  The PEB found the applicant physically unfit and recommended a combined disability rating of 80 percent with permanent disability retirement.

10.  On 30 September 2014, the applicant was removed from the TDRL.  She was permanently retired by reason of physical disability with an 80 percent disability rating on the following day.

11.  The applicant provides a self-authored statement and copies of her OERs showing her outstanding duty performance.  She provides copies of her Leave and Earnings Statements (LES) for the period 1 January 2011 through 
31 December 2011.  She provides a memorandum from her commander dated 
9 November 2011, stating his lack of support for her request to extend her retirement date in order to take leave.  The commander stated that she was approved for and took two 30-day leave periods from 12 August through 11 September 2011 and from 12 September through 11 October 2011.  The commander stated she may cash in 7 days of leave.  He stated that she had 50 days of accrued leave as of 9 November 2011 and that during her career lifetime, she had cashed in 53 days of leave, thus leaving her with 7 days of leave available to cash in.  Her LES for the month ending 30 November 2011 shows she had 50 days of accrued leave.  Her LES for the month ending December 2011 shows she cashed out 60 cumulative days of annual leave in her career.  Thus, the record shows she lost 50 days of annual leave.

12.  She provides numerous emails showing her attempts to have her retirement date extended and to allow her to take transition leave, a letter of commendation, 


and certificates showing awards that she had received and courses she had completed.

13.  Army Regulation 600-8-10 (Leaves and Passes) serves as the authority for administering the leave and pass program.  It states that Congress provides the carryover of accrued leave (no more than 60 days in a military career) for Soldiers who were not able to use their leave because military requirements prevented it.  Soldiers will not be required to use leave immediately prior to separation simply for the purpose of reducing leave balances.  On the other hand, use of leave as an extra money program defeats the intent of Congress to provide for the health and welfare of Soldiers.  It should not be used either as a method of compensation or as a career continuation incentive.  It is specifically intended that large leave balances will not be accrued expressly for settlement upon release from active duty.  Additionally, leave will not be granted that will interfere with timely processing or transition.

   a.  That regulation also states that accrued leave that exceeds 60 days at the end of the fiscal year will be lost except for special leave accrual to provide relief to Soldiers who are not allowed leave when undergoing lengthy deployment or during periods of hostility.  By law, special leave accrual authorizes Soldiers to carry forward up to 90 days of leave at the end of a fiscal year.  Leave accrual in excess of 60 days is credited only for use, not for payment.
   
   b.  Transition leave is chargeable leave granted together with transition from the Army but must not interfere with operational requirements, timely processing or transition processing.  The established transition date may be extended only for Soldiers pending physical disability separation.  This would allow a Soldier to use their accrued leave as transition leave, provided they cannot sell or cash in leave to the Government.

14.  Department of Defense Financial Management Regulation 7000.14-R states in pertinent part that a military member is entitled to receive payment for no more than 60 days of accrued leave during a military career.  

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the physical disability evaluation system (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It states only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  It also states a Soldier may not be retained or separated solely to increase retirement or separation benefits.  
16.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs (VA) Schedule of Rating Disabilities (VASRD).  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

17.  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.  

18.  Title 10, U. S. Code, section 1202 provides that if a member would be qualified for retirement for disability but for the fact his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he/she also determines that accepted medical principles indicate the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title.

19.  Title 10, U.S. Code, section 1401 provides the formulas for computing disability retired pay.  It states, in effect, that retired pay will be computed using the member's prescribed retired pay base and percentage.  It further states that if a person would otherwise be entitled to retired pay computed under more than one formula or another provision of law, the person is entitled to be paid under the applicable formula most favorable to the individual. 

20.  The Fiscal Year 2004 National Defense Authorization Act provided a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50 percent or greater.  This provision is referred to as Concurrent Retirement and Disability Pay (CRDP).  Members retired under disability provisions (Title 10, U.S. Code, chapter 61) must have 20 years of service.

21.  Combat-Related Special Compensation (CRSC) and CRDP are programs created by Congress in Public Law 108-136 to allow eligible military retirees to receive monthly entitlements in addition to retired pay.  The purpose of these entitlements is to recover some or all of the retired pay that military retirees waive for VA disability compensation.

* CRSC is a special compensation for combat-related disabilities; it is non-taxable, and retirees must apply to their Branch of Service to receive it
* CRDP is a restoration of retired pay for retirees with service-connected disabilities, and it is taxable; no application is required; eligible retirees receive CRDP automatically

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant may have had every intention of completing 20 years of active Federal service.  However, she developed medical conditions that necessitated her processing through the PDES that ultimately resulted in placement on the TDRL 4 months and 20 days prior to completing 20 years of active Federal service.    

2.  It is noted that the applicant had 50 days of earned leave at the time she was placed on the TDRL that she lost.  (Evidence shows she had already cashed out 60 days of accrued leave the maximum allowed by law.)  When the applicant was placed on the TDRL on 18 November 2011, she was retired and she concurred with the PEB's findings and recommendation to place her on the TDRL.  She has provided insufficient evidence to show that mission requirements kept her from using her leave in a timely manner.  In fact, her commander authorized two periods of 30 day leave increments earlier in 2011. 

3.  According to the applicable regulation, leave should not be used either as a method of compensation or as a career continuation incentive.  It is specifically intended that large leave balances will not be accrued expressly for settlement upon release from active duty.  Additionally, leave will not be granted that will interfere with the timely processing or transition of Soldiers off active duty.

4.  Concerning her request for 100 percent medical disability rating and thus a higher percentage of retired pay, the applicant has not shown an error or an injustice in the actions taken by the Army to process her for discharge through the PDES nor has she shown an error or an injustice in the disability rating that she received.  Therefore, there is insufficient evidence to grant her request for a 100 percent medical disability rating. 

5.  Concerning correcting her record to show 20 years of active Federal service so as to be eligible for concurrent receipt, the Board does not grant requests to correct records so as to be eligible for benefits under other programs.  The Board operates under the presumption of administrative regularity meaning that what Army officials did at the time was presumably correct.  In this case, the applicant upon reaching age 60 (or the age can be reduced below age 60 by 3 months for each 90 days of active service performed during a fiscal year) might be entitled to CRDP based on receipt of her 20-Year Letter.  If eligible, the Defense Finance and Accounting Service will adjust her retired pay accordingly at the appropriate time. 

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)                                         AR20140019140





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ABCMR Record of Proceedings (cont)                                         AR20140019140



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