MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 February 2002                   
	DOCKET NUMBER:   AR2001056980

	I certify that hereinafter is recorded the record of consideration 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 Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger W. Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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)

APPLICANT REQUESTS:  That his disability discharge be revoked and his records be corrected to show he elected transfer to the Retired Reserve.

APPLICANT STATES:  That he was not advised of the option to transfer to the Retired Reserve.  Due to this injustice, he is considered a former member instead of a retired member and is not entitled to all the benefits and privileges he would receive as a retired member.

EVIDENCE OF RECORD:  The applicant's military records show:

He was born on 19 January 1942.  After having had prior enlisted service, he was commissioned in the U. S. Army Reserve in 1979.  He was voluntarily ordered to active duty in an active guard/reserve (AGR) status on 30 November 1986.

The applicant’s physical evaluation board (PEB) proceedings are not available.  On 9 October 1996, he was discharged, with severance pay, from the U. S. Army Reserve by reason of disability with a 20 percent disability rating.  His Certificate of Release or Discharge from Active Duty, DD Form 214, shows he was authorized $119,505.60 in disability severance pay.  He had completed a total of 12 years, 2 months, and 5 days of creditable active service and a total of 33 years, 1 month, and 12 days of service for pay.  

Orders P-10-306502, U. S. Army Reserve Personnel Command (AR-PERSCOM) dated 6 October 2000 placed the applicant on the retired list effective 19 January 2001.  It is not known if these orders were amended (since his 60th birthday was not until 19 January 2002) or have been revoked.

In the processing of this application, an advisory opinion was obtained from the Transition and Separations Branch, AR-PERSCOM.  That office recommended disapproval of the applicant’s request.  It noted that he could have elected to forfeit the disability severance pay, enter the Retired Reserve, and receive retired pay at age 60.  His DD Form 214 shows he elected severance pay.  Revocation of his discharge orders would require that his severance pay be repaid; however, Army Regulation 635-40 clearly states that disability severance pay cannot be repaid for the purposes of receiving retired pay.  

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 8-9a(2) states that a soldier not on extended active duty who is unfit because of physical disability may be separated with severance pay if his or her disability is rated at less than 30 percent.  Paragraph 8-9a(3) states that a soldier may forfeit severance pay, be transferred to the Retired Reserve, and receive nondisabilitiy retired pay at age 60 if at least 20 qualifying years of service for retirement have been completed and transfer to the Retired Reserve is requested.  According to the provisions of Title 10, U. S. Code, sections 1209 and 1213, all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay.

Title 10, U. S. Code, section 1209 states that any member who has at least 20 years of service for a nonregular retirement and who would be qualified for retirement under chapter 61 (Retirement or Separation for Disability) but for the fact that his disability is less than 30 percent may elect, instead of being separated, to be transferred to the inactive status and, if otherwise eligible, to receive retired pay upon becoming 60 years of age.  Section 1213 states that a member who has received disability severance pay is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant has provided no evidence to show he was not properly counseled concerning the benefits of declining severance pay in favor of transfer to the Retired Reserve and receipt of retired pay 5 or 6 years later.  He was provided a copy of the advisory opinion which reiterated he was authorized over $119,000 in severance pay when he separated and, if his request were granted, he would be indebted to the Government for that amount.  He failed to respond to the advisory opinion within the given time frame.  

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jh____  __kak___  __rwa___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001056980	
SUFFIX		
RECON		
DATE BOARDED	20020205	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.