IN THE CASE OF:
BOARD DATE: 25 August 2015
DOCKET NUMBER: AR20150000474
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) and her 17 September 2004 release from active duty (REFRAD) orders to read "medical disability" instead of "physical disability."
2. The applicant states she was found to be medically disabled by the Department of Defense. She requested a medical evaluation board (MEB), and was placed on the permanent disability retirement list effective 1 October 2004. She fell into the gray area for retirement pay. At age 60 she was eligible to put in for retirement pay. However, because of identity theft she waited a year to apply, knowing that taxes needed to be paid for the pay.
3. The applicant provides copies of her:
* U. S. Army Reserve (USAR) Personnel Command letter, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* Orders showing she was REFRAD by reason of physical disability effective 17 September 2004
* DD Form 214
* Chronological Statement of Retirement Points
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 enlisted in the USAR on 9 July 1976. She served continuously until she retired as a sergeant first class (SFC).
3. A 14 August 2002, USAR Personnel Center letter, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), notified her that she had completed the required qualifying reserve service and was eligible for retired pay on application at age 60.
4. Orders 261-0117, Headquarters, U.S. Army Field Artillery Center and Fort Sill, dated 17 September 2004, announce the applicant was REFRAD by reason of physical disability effective 17 September 2004.
5. Her DD Form 214 shows she was REFRAD on 17 September 2004 as a sergeant first class (SFC). She had completed 1 year, 7 months, and 21 days of active duty service during the period covered by the DD Form 214 with 4 months and 14 days of prior active duty service. She also had completed 26 years,
1 month, and 23 days of prior inactive service. Item 18 (Remarks) states, in part, "The Soldier has been separated by reason of physical disability and has elected reserve retirement in lieu of severance pay. No severance pay is authorized."
6. AHRC-PDP-TR Orders C03-592151, U. S. Army Human Resources Command, dated 11 March 2015, show she was placed on the retired list as a SFC effective 17 August 2013.
7. There are no medical records or MEB or physical evaluation board proceedings available for review.
8. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Physical disability is defined as any manifest impairment due to disease or injury, regardless of degree, that reduces or prevents an individuals actual or presumed ability to engage in gainful or normal activity. The term includes disability due to mental disease. There is no provision for a Soldier to be separated due to "medical disability."
9. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-9 states the ABCMR begins consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends her DD Form 214 and REFRAD orders should be changed to read "medical disability" instead of "physical disability."
2. The applicant provided no evidence to substantiate her request.
3. The regulation governing the Board's operation begins with the presumption that the discharge process was conducted in accordance with applicable laws and regulations unless the applicant can provide evidence to overcome that presumption.
4. In view of the above, the applicant's request should be denied.
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) AR20110021833
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ABCMR Record of Proceedings (cont) AR20150000474
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