PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  6 March 2001
	DOCKET NUMBER:  AR1999028997

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Harry B. Oberg		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 that he be returned to active duty as of the date of his separation, 7 February 1999, and that he further be granted retirement effective that same date under the Temporary Early Retirement Authority (TERA).  In the alternative, the applicant requests that he be allowed to return to active duty effective 7 February 1997 (believed to be a typographical error and should say 1999), with all back pay and allowances, that he be permitted to contest the Physical Evaluation Board (PEB) recommendation of unfit for duty, and that he be allowed to request retirement under the TERA program.  If neither of these requests are approved then the applicant requests that he be returned to active duty and found fit for duty as of 7 February 1999, with all back pay and allowances, and that he be allowed to complete 20 years of Active Federal Service (AFS) as now allowed by the revised Retention Control Point (RCP) for pay grade E-5.  He provides copies of both PEB Proceedings and copies of correspondence showing that he should not have been discharged by reason of expiration of term of service (ETS).

3.  On behalf of the applicant counsel states that the applicant was initially found fit for duty by a PEB.  The Physical Disability Agency (PDA) overturned this decision and directed the PEB to conduct another review.  At this time the applicant was extended beyond his RCP for the purpose of medical processing.  On 4 February 1999 the subsequent PEB found him unfit for duty rated at 10 percent disability.  Neither the applicant nor his command were informed of this decision and he was separated from active duty on 7 February 1999 by reason of (ETS).  Counsel contends that if the applicant had been properly notified he would have been able to apply for TERA or protest the PEB findings.  In a subsequent addendum, counsel states that the only relief that the applicant is applying for is retirement under the TERA program.

4.  The applicant’s military records show that he enlisted and entered active duty on 26 October 1982.  He was trained in field artillery and continued his service through a series of reenlistments.  He was promoted to pay grade E-5 effective 7 May 1986.

5.  On 31 May 1995 the applicant extended his previous 3 year and 8 month enlistment for a total period of 5 years and 5 months.  The stated purpose of this extension was to extend him to his RCP of 15 years total active service in the pay grade of E-5 to 2 November 1997.

6.  Documentation relating to the applicant’s referral for medical processing, or his first extension of his previous ETS beyond his RCP are not in the available record.  A memorandum, dated 4 November 1998, requested that the applicant be extended again (second extension) until 7 February 1999 while his medical evaluation was being completed.  A 15 December 1998 memorandum states that the request for extension until 7 February 1999 was approved.  The applicant signed an affidavit acknowledging that his extension was voluntary and was for the purpose of completing hospital care or physical disability evaluation.

7.  On 19 October 1998 the PEB determined that the applicant had entered the physical disability system after he was already processing for, or was within 12 months of retirement or separation for other than physical disability, and that he was presumed fit for duty by the reason of presumption of fitness.  His RCP was shown as 2 November 1997 and the Medical Evaluation Board summary was dated 20 November 1997.  The applicant marked that he did not concur and that a written appeal was not attached.  The form states that failure to submit a written appeal may result in a final processing without review by the PDA.

8.  It appears that this form was provided to the separation authority.  Orders number 337-001, dated 3 December 1998, transferred the applicant to the transition point for separation based on his ETS effective 7 February 1999.

9.  On 16 December 1998 the PDA informed the PEB that the applicant’s presumption of fitness was in error and his case must be reconsidered.  On 4 February 1999 the PEB reconsidered the applicant’s disability case and found him unfit for duty based on low back pain with degenerative disc disease of the spine rated at 10 percent.  The PEB recommended separation with severance pay if otherwise qualified.  Page two of the form, which shows the soldiers election of options, is not in the available record or provided by the applicant.

10.  He was separated on 7 February 1999 by reason of ETS with 16 years, 3 months, and 12 days creditable service and authorized full separation pay in accordance with Title 10, USC, section 1174 in the amount of $36,144.36.

11.  The applicant provides two copies of e-mail correspondence that shows that he should not have been separated on ETS until final approval and processing by the PDA.  It was recommended that he file an application with this Board to obtain his correct separation entitlements for physical disability.  A 20 April 1999 memorandum from the PEB to the applicant’s former command recommended he be contacted and advised of his right to apply to this Board and the VA.

12.  In the processing of this case advisory opinions were obtained from the PDA and the Retirement and Separations Branch, PERSCOM.  The PDA opinion notes that the applicant was erroneously separated on 7 February 1999 by reason of ETS and prior to completion of disability processing.  The PDA also notes that the applicant would be entitled to a formal hearing concerning the PEB findings and recommendation of 4 February 1999 but, after an additional review, could find no evidence that would support a higher disability rating.  The PDA recommends that PERSCOM address the issue of his eligibility for retirement under the TERA program and, if determined not eligible, the applicant should be separated by reason of physical disability rated at 10 percent.

13.  The Retirement and Separations Branch, PERSCOM opinion states that the applicant was not eligible for early retirement under the TERA program because his original programmed separation date was completion of 15 years active service as an E-5.  The fact that he was retained beyond his RCP for disability processing does not convey eligibility for the early retirement program.

14.  The advisory opinions were provided to counsel for rebuttal.  Counsel, on behalf of the applicant, states that the applicant has no interest in separation based on physical disability.  The applicant’s only issue before the Board is entitlement to TERA.  Counsel points out that the RCP for pay grade E-5 was changed to 20 years active service while the applicant was still on active duty.  Since this issue is a matter of policy and not law, an exception to policy is clearly warranted.

15.  Army Regulation 601-280 provides the policy for retention of soldiers on active duty and procedures for reenlistment or extension of enlistments.  Effective 1 April 1997 the RCP for the pay grade of E-5 was changed from 13 to 15 years of total active service, after which a soldier must be separated.  A soldier in pay grade E-5 who was promotable to pay grade E-6 also had an RCP of 15 years.  Effective 30 April 1999 the RCP for a soldier in pay grade E-5 who was promotable to pay grade E-6 was changed to 20 years total active service.

16.  There is no documentation in the available record or provided by the applicant to show that he was selected for promotion to the pay grade of E-6 prior to reaching his RCP of 2 November 1997.

17.  Army Regulation 635-40 provides the policy for the Army Physical Disability Evaluation System.  It provides that soldiers who are beyond their normal separation date may, with their consent, be retained in the service until completion of the disability evaluation.  It also states that separation should occur within 20 days of the date of the final determination of unfitness.

18.  In May 1994 the PERSCOM published guidance for the FY95 Early Retirement Program.  It included authority for promotable pay grade E-5 soldiers to apply for early retirement effective the last day of the month they reach their RCP.  This program expired on 31 August 1995.

19.  Public Law 102-484, as amended by Public Law 105-261, authorizes temporary early retirement authority to effect the drawdown of military forces through 30 September 2001.  It authorizes the Secretary of the Army to apply the provisions of section 3914 of Title 10, USC to an enlisted member with at least 15 years but less than 20 years of service.  Section 3914 pertains to the authority for enlisted members to apply for retirement with at least 20 years of service.

20.  Department of Defense Instruction (DODI) 1332.18, dated 4 November 1996, Subject:  Separation or Retirement for Physical Disability provides that service members, who are otherwise eligible for, and who have the minimum number of years of service to qualify for military retirement under any law in effect at the time of their physical disability separation, shall be afforded the opportunity to elect retirement for length of service in lieu of disability separation.

21.  DODI 1332.38, dated 14 November 1996, Subject:  Physical Disability Evaluation, References:  (a)  DoD Directive 1332.18, "Separation or Retirement for Physical Disability,” November 4, 1996, (b)  Title 10, United States Code.  This DODI provides that members with a disposition of separation for physical disability who have 15 but less than 20 years of service computed under Section 1208 of reference (b) and whose unfitting conditions are not due to the member's intentional misconduct or willful neglect or incurred during a period of unauthorized absence shall be afforded the opportunity to elect separation for physical disability or to apply for, and if approved, nondisability retirement under the Temporary Early Retirement Authority (TERA) under 10 USC 3911 (reference (b)) during the period of temporary special qualification authority beginning on October 23, 1993, and ending on October 1, 1999.

CONCLUSIONS:

1.  The applicant was erroneously separated on 7 February 1999 by reason of ETS.  He should have been separated approximately 20 days later, 25 February 1999, by reason of physical disability, rated at 10 percent, with severance pay.

2.  Although the applicant was entitled to a formal PEB hearing, the Board concurs with the reevaluation of the applicant’s case by the PDA and does not believe there is any medical basis to warrant an increase in his disability rating.  Additionally, the applicant has never provided a signed copy of page two of the final PEB Proceedings providing his election of options and counsel states that TERA is the only issue before this Board.  If the applicant still believes that he is entitled to a formal PEB hearing he will have to file another application.

3.  The applicant is not entitled to file an application with PERSCOM for TERA eligibility.  His original ETS date, based on his RCP, remains the controlling factor. Since he was not originally entitled to apply for TERA prior to his ETS of 2 November 1997 he was not later entitled to apply for TERA based on his retention on active duty to complete disability processing.

4.  Additionally, the applicant was not entitled to be retained until completion of 20 years active Federal service because the RCP for an E-5 remained at 15 years.

5.  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 for the individual concerned be corrected by:

	a.  revoking the order that separated him by reason of ETS on 7 February 1999;

	b.  voiding the DD Form 214 issued on 7 February 1999;

	c.  showing that he continued to serve on active duty with entitlement to and paying him full pay and allowances until 25 February 1999;

	d.  issuing orders  and a DD Form 214 that show the applicant was separated from active duty on 25 February 1999 by reason of physical disability rated at 10 percent with severance pay; and

	e.  paying him the difference in the separation pay he received and the severance pay he is now entitled to.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__sk__  ___el___  ___ho_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Stanley Kelley____
		        CHAIRPERSON

INDEX

CASE ID	AR1999028997	
SUFFIX		
RECON		
DATE BOARDED	20010306	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.	136.05	
2.	108.00	
3.		
4.		
5.		
6.