PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            11 May 2000
	DOCKET NUMBER:   AR1999027731

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Christopher J. Prosser		Member	

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

	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, retirement under the Temporary Early Retirement Authority (TERA) in lieu of separation for physical disability with severance pay.  

3.  The applicant states, in effect, he was eligible for retirement under the TERA at the time he was placed on the Temporary Disability Retirement List (TDRL) in connection with the findings and recommendations of the Physical Evaluation Board (PEB) on 28 September 1997.  In addition, that his separation with severance pay on 12 May 1999 was the result of an administrative error because he had elected, on the advise of counsel, to concur with the reevaluation findings and recommendations of the PEB based on his request for TERA retirement.  This request for retirement he claims was lost and never processed or considered prior to his being discharged.

4.  The applicant’s military records show that on 28 September 1997, while a member of the USAR serving on active duty, in the rank of staff sergeant/E-6, in an Active Guard/Reserve (AGR) status, he was placed on the TDRL as a result of the findings and recommendations of a PEB. 

5.  On 2 July 1997, a Department of the Army (DA) Form 199 (PEB Proceedings) was published which diagnosed the applicant with major depression recurrent with considerable industrial impairment.  The finding of the PEB was that the applicant was physically unfit for duty and that his disability rating was 
50 percent.  Based on this, the PEB recommended that the applicant be placed on the TDRL, which was accomplished on 28 September 1997.

6.  The applicant was issued a DD Form 214 (Certificate of Release or Discharge From Active Duty) in connection with his placement on the TDRL.  This document shows that at the time of this separation action he had completed a total of 15 years, 2 months, and 25 days of active military service.  

7.  On 23 March 1999, PEB proceedings were published on the applicant based on his having undergone a medical reevaluation.  The PEB determined that the applicant’s condition was in remission and although still physically unfit for duty his disability rating was reduced to 10 percent.  The PEB proceedings advised the applicant that soldiers with disability ratings of less than 30 percent who had less than 20 years of retirement service are required to be separated with severance pay in lieu of disability retirement.

8.  However, the PEB proceedings also provided the applicant information that advised him that Department of Defense Instruction (DODI) 1332.38 provided for members with a disposition of separation with severance pay for physical disability who have 15 but less than 20 years of active duty service to be afforded the opportunity to elect retirement under the TERA, under the provisions of Title 10 of the United States Code, section 3911 (10 USC 3911), during the period of temporary special qualification authority ending on 1 October 1999.  It further explained that this same opportunity should be afforded to members recommended for separation from the TDRL.

9.  On 8 April 1999, the applicant completed an election form in response to the 23 March 1999 revised proceedings of the PEB.  In this form the applicant indicated that he did not concur with the findings of the PEB and he demanded a formal hearing and that counsel be appointed to represent him.  

10.  On 30 April 1999, on the advice of counsel, the applicant changed his election to concur with the findings based on his being provided the opportunity to request TERA retirement.  This election form was witnessed and signed by his legal counsel and the PEB representative. 

11.  On 5 May 1999, the 23 March 1999 PEB proceedings were approved by competent authority.  The final disposition directed in this approved document was that the applicant be separated with severance pay.  Accordingly, the applicant was discharged by reason of physical disability with severance pay on 12 May 1999.  

12.  In connection with this case a staff member of the United States Army Physical Disability Agency (USAPDA) was contacted by a staff member of this Board to clarify the processing procedures they followed in connection with the applicant’s PEB processing.  The USAPDA staff member indicated that he was unable to clarify if any action had been taken in regard to the applicant’s election to request TERA retirement prior to his separation with severance pay being directed and executed.  He further stated, given it appeared no action was taken to satisfy the option selected by the applicant to request TERA retirement in conjunction with his concurrence with the PEB findings, they would support the applicant’s request for TERA retirement made to this Board.  

13.  The TERA legal authority is contained in 10 USA 3911 (Retirement for Length of Service).  The law was amended in 1992 to authorize the Secretary of the Army to apply length of service retirement rules contained in this section of the law to service members regular or reserve with at least 15 but less than 
20 years of service by substituting ''at least 15 years'' for ''at least 20 years'' in subsection (a) of this section of the law.  DODI 1332.38 provided, in pertinent part, for the application of this law to members being separated from the TDRL.

CONCLUSIONS:

1.  The evidence of record indicates that the applicant, in effect, concurred with the findings of the March 1999 PEB and waived his right to a formal hearing contingent on his being allowed to request retirement under the TERA.  The record also makes clear that he was not given a sufficient opportunity to accomplish this action prior to being separated with severance pay on 12 May 1999.  Therefore, the Board determined, with the concurrence of the USAPDA, that it would best serve the interest of justice and equity to provide the applicant the relief requested in this case.

2.  The DD Form 214 issued to the applicant upon his placement on the TDRL shows that he had completed 15 years, 2 months, and 25 days of active military service at that time.  The law provides for qualified applicants to be retired from the TDRL, in lieu of being separated with severance pay, if they are found to be physically unfit for duty with a less than 30 percent disability rating upon reevaluation by a PEB.  

3.  The 23 March 1999 reevaluation of the PEB found the applicant to be physically unfit for duty and rated his disability at less than 30 percent and the applicant concurred with those findings conditioned on his being allowed to process a retirement request.  Given these circumstances, it is clear the proper action would have been to allow the applicant to retire under TERA provisions rather than to separate him with severance pay at that time.  Therefore, the Board concludes it would be appropriate to take this action at this time.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by voiding the applicant’s separation with severance pay on 12 May 1999 and by recouping the severance pay he received as a result of that separation.

2.  That the individual concerned be retired for length of service, under the TERA provisions of the law, effective 1 June 1999, and that he be paid all back pay and allowances due as a result of this action.

BOARD VOTE:  

____cjp__  __ja ____  ___rvo__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond V. O’Connor, Jr.__
		        CHAIRPERSON

INDEX

CASE ID	AR1999027731	
SUFFIX		
RECON		
DATE BOARDED	2000/05/11	
TYPE OF DISCHARGE	HD 	
DATE OF DISCHARGE	1999/05/12	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Disability with Severance Pay	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 338	136.0000	
2.		
3.		
4.		
5.		
6.