IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150008015 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his reason for separation be changed from age/time in service to due to a disability incurred by an instrumentality of war. 2. The applicant states he retired based on length of service in 1994 and went to work for the Department of Defense (DOD). Prior to his retirement from DOD in December 2011, he had bought back his military time. When he applied for his civilian retirement he applied as a veteran with combat-related injuries in order to get credit for all of his service with no loss of his Army retirement pay. DOD approved the retirement; however, the Office of Personnel Management (OPM) denied his application because the Army had not granted him Combat-Related Special Compensation (CRSC) and because he retired based on age or length of service. 3. The applicant provides copies of – * his 28 February 1994 DD Form 214 (Certificate of Release or Discharge from Active Duty) * Certificate of Retirement * Federal Employees Retirement System (FERS) calculation sheet * five pages of related emails * Verification of Military Retired Pay Status * a 6 April 2015 OPM letter * a 13 March 2014 CRSC award letter * a 4 March 2015 Department of Veterans Affairs summary of benefits * three sets of active duty orders * a Diplomatic Courier letter CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant served on active duty in the Regular Army from 12 February 1973 through 28 February 1994, a period of 21 years and 19 days. 3. His DD Form 214 shows he was released from active duty and transferred to the U.S. Army Reserve Control Group (Retired) based on the completion of required service for retirement. 4. There is no evidence the applicant was evaluated for or found physically unfit for continuation on active duty at the time of his military retirement. 5. Evidence provided by the applicant shows that following his military retirement he went to work for DOD, retiring from DOD in 2011. 6. A 28 March 2011 FERS retirement calculation shows the applicant's service time as 34 years and 1 day with a service computation date of 31 July 1977. 7. On 4 March 2014, the VA granted the applicant a combined 30 percent disability evaluation. 8. On 13 May 2014, the U.S. Army Human Resources Command approved his claim for CRSC retroactive to April 2008. They granted him CRSC benefits for the following – * 10 percent for impairment of the knee * 10 percent for a condition of the skeletal system * 10 percent for traumatic arthritis (location not specified) * 10 percent for traumatic arthritis (location not specified) 9. The 16 March 2015 OPM Verification of Military Retired Pay Status shows the applicant was not in receipt of VA compensation. 10. The OPM 6 April 2015 letter to the applicant stated: a. the applicant indicated that he was receiving military retired pay for a disability incurred in combat or caused by an instrumentality of war and incurred in the line of duty during a period of war; b. that he did not want to waive his military retired pay in order to receive credit for military service for benefits under the Federal Employees' Retirement System (FERS); c. documentation submitted verified his receipt of disability compensation due to service-connected disability rated at 30 percent or more; d. the service-connected disability is disability compensation benefit from the Department of Veterans Affairs (VA) and not the military retired pay received from the Defense Finance Accounting Service (DFAS); e. with his retirement package OPM received his deposit for $16,037.46 covering his military service from 12 February 1973 to 28 February 1994; f. in April 2012 he was informed that the documentation submitted by the Army was not adequate to verify receipt of military retired pay awarded for a disability incurred in combat or caused by an instrumentality of war and incurred in the line of duty during a period of war; g. OPM informed him that they needed a letter or DA Form 199 from the physical evaluation board which specifically stated his military retired pay was awarded for a disability incurred in combat or caused by an instrumentality of war and incurred in the line of duty during a period of war; h. on 1 May 2012, the applicant stated he received the correspondence and would pursue further understanding. He requested the deposit of $16,037.46 be returned; when the case file was finalized OPM included the deposit of $16,037.46 with his adjustment payment; i. upon receiving his 9 March 2015 inquiry, OPM went out to DFAS to verify the nature of his award for military retired pay; j. the response received on 16 March 2015 was that the applicant's military retirement is based on his age and length of service and not a disability incurred in combat or caused by an instrumentality of war in the line of duty during a period of war; and k. it was also verified that he did not request to waive all retired pay to combine with either his FERS retirement or for his VA compensation. 11. The DFAS CRSC website provides the criteria for award of CRSC and states that CRSC is a program that was created for both disability and non-disability military retirees with combat-related disabilities. 12. Title 10, U.S. Code, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice. 13. Title 10, US Code, Chapter 61 (Chapter 61) sets forth provisions for retirement or separation due to a physical disability including for personnel receiving medical retirement with a 30% or greater disability rating. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Separation or retirement by reason of disability requires processing through the PDES. The regulation state the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. Further, disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and the can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. DISCUSSION AND CONCLUSIONS: 1. The evidence of record does not support the applicant's request for correction of his record to show he was retired due to physical disability. 2. The applicant's voluntary request for retirement under the provisions of Army Regulation 635-200, chapter 5 for length of service was administratively correct and in conformance with applicable regulations. 3. The authority granted by Title 10, U.S. Code, section 1552 is not unlimited. The ABCMR has the authority to correct only Army records. The Board has no authority to correct records created by the other branches of the Services, DOD, or any other governmental agency such as the VA or OPM. 4. While the applicant appears to have been granted VA disability benefits for the same conditions for which he requested CRSC, there is no evidence that these conditions rendered him unfit at the time of his military retirement. 5. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 6. Any questions as to what periods of the applicant's military service is creditable for combination with his civil service toward his retirement under FERS is not within the preview of this Board. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x ___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _x______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150008015 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008015 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1