PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                              
	DOCKET NUMBER: 
	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.  The following members, a quorum, were present:

	Mr.			Chairperson	
	Mr.			Member	
	Mr.			Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
				Analyst	

	The applicant and counsel if any, did not appear before the Board.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his military records be corrected to show that he was retired under the provisions of Public Law 103-337, section 517 (15-year retirement law).  He states that he complied with all of the directions that he was issued by the District of Columbia Army National Guard in order to be retired under the provisions of the aforementioned law only to find out that he had been discharged by both the Regular Army and the ARNG. 

3.  The applicant entered active duty on 20 September 1977 and served in military occupational specialty 95B, military police.  He subsequently served in the Army Reserve and as a member of the ARNG and served in Saudi Arabia during Operation Desert Shield/Desert Storm.

4.  On 22 May 1993, with a history of a spinal fusion in 1982, and a motor vehicle accident in 1992 which required a halo brace and physical therapy at Walter Reed Army Medical Center (WRAMC), again injured his neck when he fell from his cot and hit his head while serving in an annual training status at Fort A. P. Hill, Virginia.  On 11 July 1995 he was ordered to report to WRAMC.

5.  An addendum to a medical evaluation board dated 25 September 1996 and signed by the Assistant Chief, Neurosurgery, WRAMC, shows that he determined that the applicant did not meet retention standards because of intermittent pain and spasm in his neck and reduced range of motion.  A copy of the Physical Evaluation Board Proceedings pertaining to the applicant is not in the available records; however, Total Army Personnel Command orders show that he was discharged from the ARNG effective 19 May 1997 with entitlement to disability severance pay based on 5 years, 10 months and 7 days of active service.  On the following day, he was honorably discharged as a member of the Army Reserve.

6.  A VA Rating Decision is not in the available records; however, disability severance pay is recouped prior to the award of compensation by that agency.

7.  On 8 September 1998 the Board was advised by the Chief, National Guard Bureau (NGB), that the applicant has over 15 years of qualifying service and has served the last 6 years in the DCARNG, a RC; that he was found medically disqualified for further service and therefore he should have been provided the opportunity to be retired under the provisions of  Public Law 103-337.  (NGB documents show that the applicant was counseled prior to submitting his application that he would have to return his disability severance pay in order to be eligible for retirement.)

8. The National Defense Authorization Act for Fiscal Year 1995 (Public Law 
103-337) amended Title 10, United States Code, section 1331a(c).  The modification allows RC soldiers who are involuntarily separated between
5 October 1994 and 30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward RC retirement.  The individual must also meet the requirement of having performed the last 6 years of qualifying service in the Reserve Components as outlined in Title 10, United States Code, section 1331(a) and the new subsection (f).

9.  The Department of Defense Military Pay and Allowances Manual, paragraph 40433, provides that disability severance pay will be calculated by multiplying the sum of 2 months of basic pay times the number of years of active service 

CONCLUSIONS:

1.  The applicant had more than 15 qualifying years for RC retired pay at age 
60 and had served his last 6 years in the RC at the time he was found medically disqualified for further military service.  Accordingly, he met the eligibility requirements for retirement under the provisions of Public Law 103-337.

2.  Public Law 103-337 provides retirement eligibility is substantially more beneficial for individuals in the applicant’s situation than disability severance pay which, in total, provides a one-time monetary benefit equal to 2 months of basic pay times, in this case, approximately 6 years of active duty service.  Accordingly, separating him on 19 May 1997 after more than 15 years of qualifying service and depriving him of RC retirement pay at age 60 and other substantial benefits is unjust.

3.  The applicant is not entitled to both disability severance pay and RC retirement pay at age 60.  Therefore, in view of the foregoing correction, recoupment of his disability severance pay award would be appropriate.

4.  The foregoing is supported by the advisory opinion provided by the Chief, NGB.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

	a.  by voiding the actions separating the individual concerned from the ARNG effective 19 May 1997 and as a Reserve of the Army on the following day;

	b.  by recouping the amount of disability severance pay that he was awarded; and

c.  by showing that on 19 May 1997 he was honorably separated from the ARNG and as a Reserve of the Army and transferred to the Retired Reserve with entitlement to Reserve retired pay at age 60 under the provisions of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337).

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.