MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            9 September 2003                  
	DOCKET NUMBER:   AR2003089520

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas A. Pagan 		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:  In effect, that he be separated under the provisions of the Temporary Early Retirement Authority (TERA), effective 31 December 2001, in lieu of his current 21 May 2002 separation by reason of physical disability with severance pay.  

APPLICANT STATES:  In effect, that he was hoping that his 15 years of active duty service and the fact that he was processed for separation through the disability processing system would allow him to be granted retirement under TERA provisions in lieu of his current disability separation.  He claims that due to long medical evaluation process, which was beyond his control, he could not apply for early retirement because TERA expired on 31 December 2001.  In his application, he indicates that he enclosed copies of his Permanent Profile 
(DA Form 3349) and Physical Evaluation Board (PEB) Proceedings 
(DA Form 199); however, these documents were not attached to the applicant’s application when it arrived at the Board for review.  

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

The applicant served on active duty from 30 July 1986 until he was honorably discharged on 21 May 2002.  At that time, he held the rank of staff sergeant (SSG) and he had completed a total of 15 years, 9 months, and 22 days of active military service.  

The facts and circumstances surrounding the applicant’s disability processing are not on file.  However, the record does contain a copy of the applicant’s separation document (DD Form 214), which was issued to him on the date of his discharge, 21 May 2002.  This document confirms that he was separated under the provisions of paragraph 4-24b(3), Army Regulation 635-40, by reason of physical disability with severance pay.  Item 18 (Remarks) contains an entry that indicates the applicant received disability severance pay in the amount of $59,983.20 upon his discharge. 

Title 10 of the United States Code, section 3914 (10 USC 3914) provides the legal authority for the retirement of enlisted members with twenty to thirty years of service.  It states that under regulations prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service may, upon his request, be retired.  

Public Law 102-484 provided the Secretary of the Army TERA during the active force drawdown period by authorizing the application of the 10 USC 3914 provisions to enlisted members who had completed at least 15 but less than 
20 years of service.  TERA was in effect during the active force drawdown period beginning in October 1992 and ending on 31 December 2001.

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

1.  The Board notes the applicant’s contention that he should be retired under TERA, effective 31 December 2001, in lieu of his 21 May 2002 disability separation with severance pay.  However, the Board finds an insufficient evidentiary basis to support this requested relief.  

2.  Although the facts and circumstances of the applicant’s disability processing are not on file, the record does contain a properly constituted DD Form 214 that was authenticated by the applicant with his signature on the date of his discharge.  This document confirms that the applicant was discharged by reason of physical disability and that he received $59,983.20 of severance pay in connection with this discharge.  

3.  The evidence of record also is void of any indication that the applicant  pursued retirement under TERA prior to or at anytime during his disability processing, or prior to the expiration date of the program on 31 December 2001.  In addition, notwithstanding his assertion to the contrary, there is no evidence that indicates that his disability processing was unduly delayed or that any processing delays resulted in some injustice to him.  By the applicant’s own admission, in addition to the severance pay he received at discharge, he is currently receiving disability compensation from the Department of Veterans Affairs based on his service connected disabilities.  Thus, the Board finds no evidence of error or injustice related to his disability separation or to the associated compensation he received.  

4.  Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout his disability processing.

5.  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.

6.  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

_WTM___  __TAP__  __SLP__  DENY APPLICATION

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

INDEX

CASE ID	AR2003089520	
SUFFIX		
RECON		
DATE BOARDED	2003/08/DD	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2002/05/21	
DISCHARGE AUTHORITY	AR 635-40	
DISCHARGE REASON	Disability with Severance Pay	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  338	136.0000	
2.		
3.		
4.		
5.		
6.