IN THE CASE OF: BOARD DATE: 23 February 2016 DOCKET NUMBER: AR20150005563 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, in effect, that his records be corrected so he can receive retired pay at age 60. 2. He states in August 2004, after a physical evaluation board (PEB), he was asked what he wanted to do and he elected to be placed in the Retired Reserve for the purpose of receiving retired pay at age 60. He adds he was sent a severance check in the amount of $73,000.00 which he has paid back to the government through his monthly checks from the Department of Veterans Affairs (VA). His last payment was on 1 April 2015. 3. He provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 199 (PEB Proceedings), dated 16 August 2004 * Department of the U. S. Army Physical Disability Agency (USAPDA) letter, dated 17 March 2015 * Orders 305-0177, dated 31 October 2000 * Orders D239-05, dated 26 August 2004 * Memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 22 February 1994 * VA Letter, dated 10 March 2015 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. After having prior enlisted service in both the U.S. Air Force and the Army National Guard (ARNG), on 1 March 1991, the applicant enlisted in the Illinois (IL) ARNG. His date of birth is listed as 18 March 1952. On 1 April 1991, he was ordered to active duty. 3. On 22 February 1994, he was notified of his eligibility for retired pay upon application at age 60. His retirement point history statement shows he had 20 years, 6 months, and 7 days of creditable service for retirement pay. 4. Orders 305-0177, dated 31 October 2000, show effective 15 January 2001, he was released from active duty because of physical disability and on the date following, placed on the Temporary Disability Retired List (TDRL). His DD Form 214 shows he was credited with 9 years, 9 months, and 15 days of active duty service this period. 5. On 26 July 2004, a PEB convened and considered the applicant's condition of major depressive disorder. The PEB proceedings stated that the applicant was placed on the TDRL on 16 January 2001 with continuation on TDRL until July 2002. The PEB recommended a 10 percent (%) disability rating. This form indicated that he concurred with the PEB recommendation and waived a formal hearing on 5 August 2004. (A copy of the PEB is not contained in his official military personnel file (OMPF).) A hand written note with his signature is contained on the DD Form 199 that he provided with the following comments: I hereby decline the option of disability severance pay and request option to be placed in an inactive Reserve status for the purpose of receiving retired pay at age 60. 6. Orders D239-05, dated 26 August 2004, show he was removed from the TDRL effective the same date and discharged from the service due to permanent physical disability. He received a 10% disability rating. Additional instructions stated that he was entitled to severance pay if he completed over 6 months of service. 7. Orders C02-591302, dated 9 February 2015, show the applicant was retired and placed on the retired list effect 18 March 2012 in the grade of sergeant first class (SFC)/E-7. 8. A VA letter, dated 10 March 2015, shows the applicant received a 100% service-connected disability rating. His monthly award amount was listed as $3,356.90. 9. On 17 March 2015, the Chief, Operation Division, USAPDA, informed the applicant that upon review of his records, the agency determined his disability case was not properly handled. Specifically, the record shows when he was removed from the TDRL in August 2004, he elected to transfer to the Retired Reserve rather than receive disability severance pay. There is documentation in the file that he was eligible for the transfer; however, the agency issued orders separating him off the TDRL on 26 August 2004 and authorizing him severance pay. The agency should have coordinated with his State to instruct them to transfer him to an Inactive Reserve status. 10. The Defense Finance and Accounting Service (DFAS) confirmed that the applicant did not have a retired pay account. 11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets 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 office, grade, rank, or rating a. The regulation states that PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility for a Soldier to be separated or retired because of physical disability. b. When a Soldier has a rating of less than 30% and has at least 20 qualifying years for retirement for non-regular service, "You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service or you may request transfer to the Retired Reserve and receive retired pay at age 60. According to Title 10, U.S. Code, sections 1209 and 1213, you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve." c. The findings and recommendations of the informal PEB are recorded on a DA Form 199. Appendix D provides instructions for completing this form. In item 13 (Election of Member) the Soldier will complete this block by placing a checkmark in the appropriate block indicating his or her elections after the informal findings and recommendations and sign and date the form. The legal counsel or PEB Liaison Officer (PEBLO) who informs the Soldier of the PEB's findings and recommendations and his available options will sign item 14 (Counselor's Statement). d. The PEBLO will counsel each Soldier (or the next-of-kin or legal guardian, when appropriate) throughout the physical disability processing. Counseling will be based on the individual circumstances of each case and will be designed to serve the Soldier's best interest. Answers to questions about medical evaluation board and PEB procedures will be provided in detail. The PEBLO must reassure the Soldier that counseling will continue as needed as the case progresses within the disability system. Soldiers should be encouraged to ask questions during case processing. All Soldiers should be advised of benefits and training provided by the VA, Department of Labor, and Social Security Administration. 12. Public Law 95-397, the Reserve Component Survivor Benefit Plan (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement and participation in SBP, but were not yet age 60, to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (a) elect to decline enrollment and choose at age 60 whether to start SBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member’s 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant received his 20-year letter on 22 February 1994. By law, members of the Reserve Components who complete at least 20 years of qualifying service are eligible to receive retired pay upon application at age 60. 2. Although the applicant's PEB proceedings were not contained in his OMPF, the copy he provided and orders removing him from the TDRL verify he received a 10% disability rating. Further, by his own admission, he received $73,000.00 in severance pay. However, Orders C02-591302, dated 9 February 2015 show he was placed of the retired list effective 18 March 2012. 3. The evidence of record confirms his processing through the Army's physical disability evaluation system ultimately led to his discharge from active duty by reason of physical disability with severance pay on 15 January 2001 as evidenced by his DD Form 214. The record further shows as of 10 March 2015, he was awarded a 100% disability rating from the VA and receives monthly disability payments in the amount of $3,356.90. The applicant offers that his debt (severance pay) to the government was paid as of 1 April 2015. 4. The evidence of record confirms he was originally eligible to elect a non-regular retirement instead of separation with severance pay at the time of his disability separation in 2001. It appears he may not have fully understood his options and/or been given the opportunity to elect receipt of retired pay in lieu of disability severance pay. 5. The evidence of record further shows that the USAPDA stated that the applicant's disability case was not properly handled and the applicant elected to transfer to the Retired Reserve after he was removed from the TDRL in lieu of severance pay. Since he was originally eligible for retired pay at age 60, has reportedly repaid his severance pay, and his orders placed him on the retired list as of 18 March 2012, it would be appropriate and serve the interest of justice and equity to correct his record by voiding his 26 August 2004, disability discharge with severance pay and to show he was transferred to Retired Reserve on that same date. 6. Further, he should be paid all back retired pay due from 18 March 2012 (his 60th birthdate), minus any severance pay that may not have been previously collected. 7. Since he was ineligible for retired pay due to receipt of severance pay, it would also be appropriate to correct his records to show he deferred the decision to elect RCSBP coverage until age 60 and allow him the opportunity to either enroll or decline SBP coverage. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. voiding his 26 August 2004 disability discharge and showing he was instead transferred to the Retired Reserve on that same date; b. showing his application for retired pay was accepted and processed in a timely manner; c. showing he deferred his RCSBP election to age 60 and allow him to either decline or enroll in the SBP; and d. providing him all back retired pay due from 18 March 2012, minus any severance pay that may not have been already collected. _______ _ _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) AR20150005563 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005563 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1