IN THE CASE OF:	  

		BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150001631 


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, an active duty retirement by reason of medical disability.

2.  The applicant states he was medically discharged with severance pay in 2005.  He had over 18 years of active duty in the Active Guard/Reserve (AGR) Program.  He was never placed on sanctuary, placed in a holding company or offered early retirement.  He was placed on the Temporary Disability Retired List (TDRL) for 1 year and separated at the end of that year.  He had over 23 years total military service; therefore, he was placed in the Retired Reserve.  He feels he was denied the ability to retire from active duty.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and various email messages, dated from 13 January 2014 to 28 October 2014.

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 Indiana Army National Guard (INARNG) on 29 January 1982.  He entered active duty for training (ADT) on 25 June 1982 and was honorably released from ADT on 13 October 1982.

3.  He entered active duty in the AGR Program on 18 May 1987.  

4.  He was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 31 January 2002.  This letter notified him he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

5.  His record contains a DA Form 3349 (Physical Profile), dated 8 September 2004, which shows he received a permanent L-3 profile for ankylosing spondylitis and back inflammation and was recommended for a medical evaluation board (MEB).

6.  His record contains a DD Form 2808 (Report of Medical Examination), dated 20 September 2004, which lists the following defects and diagnoses:

* ankylosing spondylitis
* obesity
* hypersensitivity lung disease (HLD)
* chronic iritis

7.  His record contains a DA Form 3947 (MEB Proceedings), dated 22 September 2004, which shows the MEB referred him to a physical evaluation board (PEB) for his condition of ankylosing spondylitis.  It further shows the applicant agreed with the MEB's findings and indicated he wished to continue on active duty.

8.  His record contains a DA Form 3349, dated 28 September 2004, which shows he received a permanent L-3 profile for ankylosing spondylitis and back inflammation.  

9.  His record contains a DA Form 199 (PEB Proceedings), dated 8 October 2004, which shows the PEB considered his medical condition of ankylosing spondylitis associated with iritis and urethritis, affecting the spine, sacroiliac and hip areas.  The PEB found the applicant physically unfit, recommended a combined disability rating of 40 percent, and that he be placed on the TDRL.  The applicant concurred with the PEB's findings and waived his right to a formal hearing.

10.  Orders Number 341-0171, issued by Headquarters, U.S. Armor Center and Fort Knox, Fort Knox, Kentucky on 6 December 2004, released him from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his placement on the TDRL with a 40 percent disability rating.  These orders also show:  

* effective date of retirement: 18 February 2005
* date placed on retired list: 19 February 2005
* retirement type:  temporary disability
* component:  ARNG
* Statute authorizing retirement: 1202
* disability retirement:  18 years, 2 months, 27 days 
* Section 1405: 18 years, 11 months, 14 days
* Basic pay: 22 years, 10 months

11.  He was honorably retired on 18 February 2005, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b (2), by reason of a temporary disability.  His DD Form 214 shows he completed 18 years, 2 months, and 27 days of total active service.  

12.  Orders Number 355-047, issued by the INARNG on 20 December 2004, honorably discharged him from the ARNG and assigned to the Retired Reserve, effective 18 February 2005.  

13.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the INARNG and transferred to the Retired Reserve on 18 February 2005, after having completed 23 years and 20 days of total service for pay.  

14.  His records contain a series of correspondence, issued by the U.S. Army Physical Disability Agency (USAPDA) on 12 July 2005, which informed the applicant that his periodic medical examination would occur during or before October 2005.  Additionally, Letter Orders Number D 10-109, issued by the USAPDA on 12 July 2005, attached him to the Ireland Army Community Hospital, Fort Knox, Kentucky for his periodic physical examination effective October 2005.

15.  His record contains a DA Form 199, dated 2 November 2005, which states the applicant was "Placed on the TDRL on 19 February 2005 for active ankylosing spondylitis.  [The applicant has had] no exacerbations or systemic manifestations now in almost 18 months since starting Enbrel injections.  [The] current examination shows full motion in all planes, some pain with motion, and sacroiliac tenderness.  [The] severity of [his] symptoms may be aggravated by obesity.  Continued back pain precludes [his] return to active service.  [His condition is considered] stable for final rating purposes.  [He is] rated [at 10 percent] for tenderness."  The PEB found the applicant physically unfit, recommended a combined disability rating of 10 percent, and recommended his separation from service with severance pay, if otherwise qualified (emphasis added).  The applicant concurred with the PEB's findings and waived his right to a formal hearing.

16.  His record contains a memorandum issued by Headquarters, U.S. Army Medical Department Activity, Fort Knox, KY, on 14 November 2005, which states the applicant was counseled on 5 November 2005 on the PEB's findings and his disposition.  

17.  Orders Number D340-04, issued by the USAPDA on 6 December 2005, removed him from the TDRL and discharged him due to a permanent physical disability, effective 6 December 2005.  These orders stated he received a 10 percent disability rating and was entitled to severance pay.  

18.  The applicant provides a series of emails showing:

	a.  On 13 January 2015, he sent an email to the U.S. Army Human Resources Command (HRC) Retirement Service Branch.  He stated he was on active duty for over 18 years when he was diagnosed with a medical condition and medically separated without the benefit of sanctuary or placement in a holding company.  He stated he did receive separation pay but felt he was rushed to decline further retirement.  On 14 January 2015, HRC responded to his email and informed him he would need to apply to the ABCMR to seek resolution.  

	b.  On 27 October 2014, he sent an email to the Adjutant General Division at HRC and asked the same questions/addressing the same issues as his 13 January 2015 email.  An HRC official responded to his email stating:

		(1)  The sanctuary program as defined by Title 10 of the U.S. Code, is a federal program for protecting military service members from being forced to leave military service when they are close to attaining active-duty retirement eligibility.  

		(2)  Once a Soldier has 18 years of active military service time accrued, if they are a Regular Army/active duty Soldier they are "locked-in" and protected by the sanctuary program until they reach 20 years of active service and are eligible for retirement.  

		(3)  While sanctuary protections are automatic for active duty Soldiers, Reserve Soldiers on active duty who attain 18 years or more (but less than 20 years) of active service must forward a request to the sanctuary team at HRC to request sanctuary, and specifically claim this sanctuary status to ensure they remain on active duty once their current tour ends.  This request must be submitted within 120 days prior to the end date of the current tour/orders.  

19.  Title 10, U.S. Code, section 1176 (Enlisted members: Retention after completion of 18 or more, but less than 20, years of service) provides that:

   a.  A regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within 2 years of qualifying for retirement, shall be retained on active duty until the member is qualified for retirement, unless the member is sooner retired or discharged under any other provision of law (emphasis added).

   b.  A Reserve enlisted member serving in an active status, who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under 10 U.S. Code section 12732, may not be discharged, denied reenlistment, or transferred from an active status without the member’s consent before the earlier of the following:

      (1)  If, as of the date on which the member is to be discharged or transferred from an active status the member has at least 18, but less than 19, years of service computed under 10 U.S. Code section 12732 — 

         (a)  the date on which the member is entitled to be credited with 20 years of service computed under 10 U.S. Code section 12732; or

         (b)  the third anniversary of the date on which the member would otherwise be discharged or transferred from an active status.

      (2)  If, as of the date on which the member is to be discharged or transferred from an active status the member has at least 19, but less than 20, years of service computed under 10 U.S. Code section 12732 — 

         (a)  the date on which the member is entitled to be credited with 20 years of service computed under 10 U.S. Code section 12732; or

         (b)  the second anniversary of the date on which the member would otherwise be discharged or transferred from an active status.

20.  Title 10, U.S. Code, section 12686a (Reserves on active duty within two years of retirement eligibility: limitation on release from active duty) provides that under regulations prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a Reserve component who is on active duty (other than for training) and who is within 2 years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title, may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary.

21.  Title 10, U.S. Code, section 1202 (Regulars and members on active duty for more than 30 days: TDRL) provides that upon a determination by the Secretary concerned that a member described in 10 U.S. Code 1201 would be qualified for retirement under 10 U.S. Code 1201, but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the temporary disability retired list, with retired pay computed under 10 U.S. Code section 1401.

22.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The USAPDA, under the operational control of the Commander, HRC, is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected
	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board (MMRB)
* are command-referred for a fitness-for-duty medical examination
* are referred by HRC

	c.  The PDES assessment process involves two distinct stages:  The MEB and the PEB.  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

23.  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.  Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

24.  Army Regulation 135-180 (Retirement for Non-Regular Service) provides that retired pay is pay that is granted to Reserve component Soldiers and former Soldiers, upon application, after they have completed 20 or more years of qualifying service and have attained age 60.  To be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and not have elected to receive disability severance pay in lieu of retired pay at age 60. 

25.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states that service members may be assigned to the Retired Reserve if the service member completed a total of 20 years of active or inactive service in the Armed Forces, is medically disqualified from further active duty service because of a service-connected disability, or is medically disqualified not as a result of own misconduct, from retention in an active status or entry on active duty, regardless of the total years of service completed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was denied sanctuary while on active duty; thus, he was denied the ability to retire on active duty.  His underlying contention is that the sanctuary protections afforded by law (10 U.S. Code, section 1176) should have applied in his case, regardless of the PEB's findings and recommendation to medically discharge him.  

2.  The evidence shows the applicant underwent a PEB on 8 October 2004 and was found physically unfit.  He concurred with the PEB's recommendation that he receive a disability rating of 40 percent, with placement on the TDRL.  He had the option to disagree and demand a formal hearing; however, he chose not to take this action.  Accordingly, he was retired by reason of temporary disability and he was placed on the TDRL.  

3.  The applicant was issued a 20-Year Letter in 2002; therefore, in conjunction with the PEB's findings of unfitness and its recommendation that he be placed on the TDRL, he was discharged from the ARNG and transferred to the Retired Reserve.  

4.  Later, upon reexamination and reconsideration by a PEB, the applicant's condition had stabilized and although he was still found to be physically unfit for further service, his combined disability rating was determined to be 10 percent.  Therefore, since this percentage was below the 30 percent disability rating required for permanent retirement, the PEB recommended the applicant's separation from service with severance pay.  The applicant concurred with the PEB's findings and waived his right to a formal hearing.  The applicant was counseled about the PEB's recommendations and the disposition of his case and he still concurred with the PEB's recommendation; even though he had the option to disagree.  

5.  The applicant contends he should have been placed on sanctuary, placed in a holding company or offered early retirement, presumably an immediate, regular retirement.  

   a.  The applicant was initially retired and placed on the TDRL; however, upon a later reexamination and reconsideration by a PEB, it was determined that his condition had stabilized, although he was still found to be physically unfit for further service.  Since he had previously attained eligibility for non-regular retirement at age 60, he was transferred to the Retired Reserve.  The sanctuary protection contained in 10 U.S. Code, section 1176, does not extend to medical discharges based upon physical unfitness for further service, since, as specified in this law, his separation was predicated on another provision of law.
   
   b.  The applicant was determined to be unfit for further service; therefore, placing him in a "holding company" for the purpose of allowing him to attain 20 years of active service would have been contrary to law, since 10 U.S. Code section 1176 only offers sanctuary protections to those Soldiers not eligible for  retirement or discharge under any other provision of law.    

	c.  Finally, the applicant was not determined to have a combined disability rating of 30 percent or greater and he had not attained 20 years of active federal service; therefore, he was not eligible for regular retirement.

6.  Based on a complete and thorough review of applicable law, the evidence of record, and the evidence provided by the applicant, there does not appear to be an error or injustice in this case.

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)                                         AR20150001631



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001631



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1