RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 April 2006
      DOCKET NUMBER:  AR20050010029


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John G. Heck                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show he did not
elect to receive severance pay and that he elected to receive retired pay
at age 60 instead.

2.  The applicant states he was not counseled regarding the choices
available to him at the time of his separation.  He was not aware of the
implication of receiving severance pay and how it would affect his reserve
retirement, nor was he given the opportunity to make a choice on which
option he wanted.  He did not realize he had not been properly counseled
until speaking with a retirement counselor recently (12 April 2005).

3.  The applicant states he received his notification of eligibility for
retired pay at age 60 (his 20-year letter) in 1989.  His letter states
"Your eligibility for retired pay may not be denied or revoked on the basis
of any error, miscalculation, misinformation, or administrative
determination of years of creditable service performed unless it resulted
directly from fraud or misrepresentation on your part."  The only other
provision for not being eligible for retired pay is [whether] he qualified
for retired pay from an armed force or retainer pay as a member of the
Fleet Reserve or Fleet Marine Corps Reserves.  Knowing he did not
fraudulently acquire any time or points, he was confident that if he did
not retire from an Active Guard Reserve (AGR) status, he would be
guaranteed a retirement at age 60.

4.  The applicant states he was found unfit for duty in 1993 with a 10
percent disability rating and had less than 12 years of active Federal
service, so he was not eligible for a medical retirement.  During his
separation counseling, he was never counseled regarding any choices about
taking or not taking severance pay. He believed his 20-year letter made him
eligible for retired pay at age 60 and any disability granted by the
Department of Veterans Affairs (VA) would be offset by that retired pay.
The $56,620.80 he received in severance pay was money he planned to use to
get him through the transition of leaving the Army and getting a job he
could perform as a disabled veteran.

5.  The applicant states that, after filing a claim with the VA for medical
treatment, he became aware that his severance pay would be paid to the VA
in monthly increments so he could seek medical treatment from the VA and
receive a disability check.  He was never counseled regarding the
requirement to pay the VA for his medical care, which is in essence what
happened.  In 1994, he requested the Army Board for Correction of Military
Records (ABCMR) to change his discharge with severance pay to a medical
retirement.  It was only after he was discharged that he became aware of
the differences between severance [pay] and retired [pay].  He believes the
ABCMR denied his request based on the fact he did not accurately state his
case.

6.  The applicant states that, by not being properly counseled and, in
effect, the Army making a choice for him, he has been denied his retired
pay, denied the opportunity to participate in the Concurrent Receipt
Program, denied the opportunity to participate in the Survivor Benefit
Plan, and denied all other retiree benefits.  While he realizes some of
these programs were not around in 1993, he would not have given up his
retired pay and the right to be a military retiree had he been properly
counseled.

7.  The applicant provides an undated letter to the ABCMR from an Army
National Guard (ARNG) Retirement counselor; his 20-year letter; an ARNG
Retirement Points History Statement; a National Guard Bureau Form 22
(Report of Separation and Record of Service); two DD Forms 214 (Certificate
of Release or Discharge from Active Duty); his Medical Evaluation Board
(MEB) packet; a   U. S. Total Army Personnel Command memorandum dated 8
June 1993; active duty orders dated 22 March 1988; his release from active
duty orders; and his discharge orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records were signed out to another office and
are not available to the Board.  This case is being considered using
reconstructed records which consist primarily of the documents provided by
the applicant and ABCMR Docket Number AC94-09664 dated 20 September 1995.

2.  The applicant enlisted in the ARNG on 26 July 1968.  He entered active
duty in an AGR status for the second time on 19 July 1985.

3.  The applicant's 20-year letter is dated 22 March 1989.  The wording of
the letter is as he states in paragraph 3 of THE APPLICANT'S REQUEST,
STATEMENT, AND EVIDENCE, above.

4.  On 23 March 1993, an MEB found the applicant to be physically unfit and
recommended he be referred to a Physical Evaluation Board (PEB).

5.  The PEB packet was apparently available when the ABCMR considered the
applicant's case in 1995 but is not currently available for consideration.
The applicant did not provide the packet, and the U. S. Army Physical
Disability Agency does not have it on file.
6.  The PEB apparently recommended the applicant be separated with a
    10 percent disability rating for low back pain.  The applicant
concurred with those findings and recommendations and waived a formal
hearing.

7.  On 22 June 1993, the applicant was discharged from active duty due to
physical disability with severance pay and transferred to his ARNG unit.
He had completed a total of 11 years, 8 months, and 3 days of creditable
active service.  He was discharged from the ARNG and as a Reserve of the
Army effective       22 June 1993.

8.  On 16 March 2006, the Board analyst emailed the applicant and requested
he provide his PEB packet.  He was also asked if he understood he would
have to repay his severance pay if his request was granted.  He did not
respond.

9.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

10.  Title 10, U. S. Code, section 1212(c) states the amount of disability
severance pay received shall be deducted from any compensation for the same
disability to which the former member becomes entitled under any law
administered by the VA.  Thus, VA compensation may be withheld as an offset
on a monthly basis until the total amount of military severance pay has
been recovered.

11.  Title 10, U. S. Code, section 1213 states that, unless a person who
has received disability severance pay again becomes a member of an armed
force, the National Oceanic and Atmospheric Administration, or the Public
Health Service, he is not entitled to any payment from the armed force from
which he was separated for, or arising out of, his service before
separation, under any law administered by one of those services or for it
by another of those services.  However, this section does not prohibit the
payment of money to a person who has received disability severance pay, if
the money was due him on the date of his separation or if a claim by him is
allowed under any law.

12.  Title 10, U. S. Code, section 12731(d) states the Secretary concerned
shall notify each person who has completed the years of service required
for eligibility for retired pay.  The notice shall be sent, in writing, to
the person concerned within one year after the person completes that
service.  Section 12738(a) states that after a person is notified that he
or she has completed the years of service
required for eligibility for retired pay, the person’s eligibility for
retired pay may not be denied or revoked on the basis of any error,
miscalculation, misinformation, or administrative determination of years of
service unless it resulted directly from the fraud or misrepresentation of
the person.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not counseled regarding the
choices available to him at the time of his separation (in regard to
accepting severance pay or waiving severance pay in favor of retaining his
entitlement to retired pay at age 60) has been carefully considered.
Unfortunately, as the applicant's records and PEB packet are not available,
there is insufficient evidence on which the ABCMR can determine exactly
what happened in his case.  In the absence of evidence to the contrary, it
is presumed that his disability separation processing was conducted in
accordance with law and regulations applicable at the time and that he was
briefed on the consequences of his accepting severance pay.

2.  The applicant is correct when he contended his 20-year letter stated
his eligibility for retired pay could not be denied or revoked on the basis
of any error, miscalculation, misinformation, or administrative
determination of years of creditable service performed unless it resulted
directly from fraud or misrepresentation on your part.  However, the letter
does not state that his eligibility for retired pay could not be denied
based upon other provisions of the law.  It is another provision of the
law, Title 10, U. S. Code, section 1213, that states because he has
received disability severance pay he is not entitled to any payment from
the Army arising out of his service before separation.

3.  The applicant contended he was never counseled regarding VA
compensation being withheld as an offset until the total amount of his
severance pay has been recovered (as required by law, and not as payment
for his VA medical care).  However, neither does he provide evidence or
argument that he would not have sought VA treatment or compensation had he
been counseled concerning that requirement, or that he would not have
accepted severance pay had he known of the requirement.

4.  Regrettably, without the complete PEB packet to consider, and without
the applicant's acknowledgment and concurrence that his severance pay would
be recouped from him if his request is granted, there is insufficient
evidence on which to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rld___  __rr____  __jgh___  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.




                                  __Robert L. Duecaster_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010029                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060418                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.04                                  |
|2.                      |108.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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