BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150006150 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150006150 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150006150 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, retired pay benefits and entitlements based upon completion of 20 years of qualifying service for non-regular retirement at age 60 or full medical retirement benefits instead of separation from the Regular Army (RA). 2. The applicant states: a. He retired from the U.S. Marine Corps (USMC) Reserve (USMCR) on 1 March 2004 (non-regular retirement). b. He came out of retirement (discharged from USMCR) in January 2006 to join the California Army National Guard (CAARNG). c. Upon discharge from the USMCR, he received a letter from the USMC stating the military branch of service that accepted his new enlistment will be responsible for his retirement, which was the CAARNG. d. He served in the CAARNG for 10 months, was discharged, and then enlisted in the RA in November 2006. He was medically separated from the RA in February 2011. e. He was told the CAARNG should handle his retirement, but when he contacted them he was informed he had to be with the Army Reserve Component 8 years to collect retired pay. The CAARNG representative referred him back to the Army. f. He believes that his record will show he has sufficient active duty service for a medical or reserve retirement. 3. The applicant provides: * USMC letter, subject: Notification of Entitlement to Retired Pay at Age 60 (20-Year Letter), dated 10 February 2004 * letter from the Sergeant Major of the Marine Corps * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 10 December 2002 to 23 January 2004 * USMCR Retirement Certificate, dated 1 March 2004 * Career Retirement Credit Record, dated 4 January 2006 * USMC letter, subject: Withdrawal of Retirement and Discharge, dated 5 January 2006 * National Guard Form (NGB) 22E (Report of Separation and Record of Service), effective 31 December 2006 * Orders 347-212, Joint Base Garrison, Joint Base Lewis-McChord, dated 13 December 2012 * DD Form 214 for the period 9 November 2006 to 2 February 2011, * CAARNG memorandum for record, subject: Request for Retirement Pay, dated 6 January 2013 * U. S. Army Human Resources Command (HRC) letter to the applicant's member of congress, dated 30 October 2013 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 was born in July 1964. He will reach 60 years of age in 2024. 3. His complete USMCR records are not available for review by the Board. However, the applicant provided sufficient evidence from his USMCR record in support of his application. He provided a USMCR DD Form 214 showing he served on active duty from 10 December 2002 to 23 January 2004 in support of Operation Iraqi Freedom. He was released from active duty and returned to his USMCR unit. This DD Form 214 shows his prior active service was 5 years, 7 months, and 2 days and his active service this period was 1 year, 1 month and 14 days. 4. A 10 February 2004 USMC letter notified the applicant that he would be transferred to the USMRC Retired List because he had completed 20 years of qualifying service for non-regular retirement effective 1 March 2004. He would be eligible to receive retired pay at age 60, unless he was eligible for pay under some other provision of law. 5. A 1 March 2004 Certificate of Retirement shows he was retired from the USMCR on 1 March 2004. 6. A 4 January 2006 chronological statement of retirement points shows his total qualifying service for non-regular retired pay as 20 years, 6 months and 10 days. 7. A 5 January 2006 USMC letter, subject: Withdrawal of Retirement and Discharge, notified the applicant that his request to be removed from the Retired List and discharged was approved effective 4 January 2006. He received an Honorable Discharge Certificate. He was informed that he had 20 years, 6 months, and 10 days of qualifying service creditable towards Reserve retirement benefits. The letter stated: …You are reminded that application for retired pay must be made to the Secretary of the military department having jurisdiction at the time of application over the armed force in which you are serving or last served. Therefore, if your application for enlistment into the California National Guard is approved, you must submit for retirement benefits through the Army National Guard. 8. He enlisted in the CAARNG with a medical waiver (history of lumbar and shoulder surgery) on 9 January 2006. 9. His NGB Form 23B (Army National Guard Retirement Points History Statement), dated 6 April 2006, shows he completed 21 years of qualifying service for non-regular retired pay. 10. An NGB Form 22E shows the applicant was honorably discharged on 31 December 2006 [sic 8 November 2006] from the CAARNG to accept an enlistment in any component of the armed forces. He served in the CAARNG for 11 months and 23 days. 11. The applicant enlisted in the RA in the grade of E-5 on 9 November 2006, with a medical waiver. 12. On 23 February 2010 the applicant attended the standard medical evaluation board (MEB)/physical evaluation board (PEB) briefing. 13. The U.S. Army Physical Disability Agency (USAPDA) provided his medical separation processing documents. A medical evaluation board narrative summary dated 29 June 2010 shows he was referred into the disability evaluation system (DES) for back pain, post fusion surgery. He had his case adjudicated by the Department of Veterans Affairs (VA)/Department of Defense (DOD) Integrated Disability Evaluation System (IDES). 14. On 8 July 2010 he was issued a permanent physical profile for low back pain post spinal fusion. The profiling official stated he required an MEB/PEB. 15. On 22 July 2010, an MEB convened at the Madigan Army Medical Center, Fort Lewis, WA. After consideration of clinical records, laboratory findings, and physical examination, the MEB found the applicant failed retention standards due to low back pain. He also had numerous other diagnoses, which did not fall below retention standards: * neck pain * bilateral knee pain due to patella-femoral syndrome * astigmatism * pinguecula, both eyes * hypercholesterolemia * bilateral elbow pain * erectile dysfunction * bilateral shoulder pain due to degenerative joint disease * gastroesophageal reflux disease (GERD) * bilateral tinnitus * adjustment disorder with mixed anxiety and depressed mood 16. The MEB findings and recommendation were approved on 17 August 2010. The applicant disagreed with the MEB findings and recommendations and appealed. In his appeal statement he stated his neck pain should be shown as not meeting retention standards due to loss of the cervical lordosis and that there is cervical spondylosis with degenerative changes at C4/C5 with disk narrowing. His neck pain was from a whiplash injury incurred in 2008 during a counter-terror driving course. He said he could not wear his Kevlar without experiencing neck pain. 17. On 6 September 2010, his appeal was considered and due to no profile limitations for neck pain documented in his record, his appeal was denied. The approval authority forwarded his MEB to the PEB. 18. On 12 October 2010, the VA rendered a recommendation of proposed disabilities for the DES. The VA proposed a 20 percent rating for VA Schedule for Rating Disabilities (VASRD) code 5241, spinal fusion lumbosacral spine. This was the only medical condition referred to the VA by the DES. There were additional medical conditions found to be service connected. Diagnosis VARSD Code Percentage 1 – left should strain (bilateral shoulder arthritis 5201 20 2 – degenerative arthritis, cervical spine 5242 10 3 – patellofemoral pain syndrome, right knee 5260 10 4 – patellofemoral pain syndrome, left knee 5260 10 5 – tinnitus 6260 10 6 - adjustment disorder with mixed anxiety and depressed mood 9440 10 7 – GERD 7346 0 8 – erectile dysfunction 7522 0 9 – bilateral pinguecula (eye conjunctiva) 6037-7800 0 19. The VA proposed the following diagnoses were not service connected: Diagnosis VARSD Code 1 – arthroscopic surgery, right shoulder 5201 2 – costochondritis (chest pain) 5297 3 – exophthalmos (bulging eyes) 6000 4 – upper respiratory infections 6600 5 – positive tuberculin test 6799-6723 6 – residuals meningitis 8019 20. On 19 October 2010 following completion of his VA disability assessment of his unfitting and service-connected disabilities, an informal PEB convened and found the applicant’s condition of back pain (spinal fusion) prevented him from performing the duties required of his grade and military occupational specialty. The PEB determined he was physically unfit and recommended a rating of 20 percent. The other medical conditions noted in his MEB were found to meet medical retention standards. There was no documentation showing the additional medical conditions were profiled thus limiting his ability to perform his duties. The PEB recommended separation. His PEB contains the statement: It is noted that your disability rating is less than 30 percent. Soldiers with a disability rating of less than 30 present and with less than 20 years of service, as computed under Title 10, U.S. Code, section 1208 (active plus [Reserve Component] equivalent service), are separated from service with disability severance pay. 21. On 22 October 2010, the applicant received his final counseling by a PEB Liaison Officer (PEBLO) who explained his rights, the disability process, the MEB process and how to appeal, the PEB adjudication, and the role of the USAPDA. The record of counseling was recorded on a DA Form 5893 (Soldier’s MEB/PEB Counseling Checklist). He initialed that he knew and understood his election options. He concurred with the PEB findings and recommendations. He acknowledged he understand that in certain cases, retirement eligible NG/U.S. Army Reserve (USAR) Soldiers must take certain actions to protect their retirement benefits. 22. He concurred with the PEB's findings and recommendation, waived his right to formal hearing, and indicated that he did not want a reconsideration of the VA ratings. His PEB was approved on behalf of the Secretary of the Army on 26 October 2010. 23. A DD Form 214 shows the applicant served in the RA from 9 November 2006 to 2 February 2011, when he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to physical disability, with severance pay, non-combat. He received $81,187.20 in disability severance pay. Orders 347-0012 separated him from the RA and authorized his disability severance pay based on pay grade E-6 with 13 years, 7 months, and 12 days computed under Title 10, U.S. Code, section 1208. 24. The applicant provided a 6 January 2013, CAARNG, memorandum for record that stated the applicant requested to be removed from the USMCR Retired List and was subsequently discharged. He then joined the CAARNG. In accordance with Army Regulation 135-180 (ARNG and Army Reserve Retirement for Non-Regular Service), paragraph 2-1, the applicant does not qualify for retirement as he did not serve 8 or more years in the ARNG. 25. The applicant provided a 30 October 2013 HRC letter addressed to a member of Congress. The letter states the applicant had completed over 20 years of military service in the USMCR and was placed on the USMCR Retired List. He requested to be removed from the USMCR Retired List and was discharged. He then joined the CAARNG. He must submit his 20-year letter and retirement application through the CAARNG. 26. In the processing of this case, a staff member of the Board contacted the applicant by email on 25 July 2016. The staff member advised the applicant that by law he could not collect both severance pay and retired pay. He was advised he would have to repay his separation pay if the Board granted his request. He was asked if he provided his 20-year letter to his PEBLO documenting the fact he qualified for a non-regular retirement based on his Reserve Component service. He responded on 1 August 2010 stating that every time he tried to talk to his PEBLO concerning his eligibility for retired pay at age 60, his questions were ignored. Finally, he was told because he entered the RA, he forfeited his right to a Reserve Component retirement. He states he is currently paying back his RA severance pay because he receives VA disability compensation. He closes by stating, ?I had no idea or clue that I would lose everything by coming back on active duty [RA] and getting hurt.? REFERENCES: 1. Army Regulation 135-180 states in: a. Paragraph 2–2 (Basic Qualifying Service Requirements): To be eligible for retired pay at or after the age specified in paragraph 2–1, an individual need not have military status at the time of application, but must have completed a minimum of 20 years of qualifying service computed under Title 10, U.S. Code, section 12732. b. Paragraph 2–3 (Other service requirements): Additional Reserve component service requirements include, for Soldiers who completed the years of qualifying service in paragraph 2–2 before 5 October 1994, the last 8 years of qualifying service must have been in a component other than a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve. (This was changed to 6 years and then zero years by law.) 2. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. The determination of physical unfitness will be made by relating the nature and degree of physical disability of the Soldier to the requirements and duties that the Soldier may reasonably be expected to perform in their primary military occupational specialty. 3. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. Chapter 7 relates to the removal of Soldiers from a Reserve Component active status list and states that Soldiers removed from an active status will be discharged or, if qualified, and if they so request, will be transferred to the Retired Reserve 4. DOD Directive Type Memorandum (DTM) 11-015 (IDES) states: a. The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension standards. Collectively, the examinations will be sufficient to assess the member?s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member (or his or her designated representative) may request correction of his or her military records through his or her respective BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, they may request correction of his/her military records through his/her respective BCMR. e. If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member of the regular armed force who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member of the regular armed force who has less than 20 years of service and a disability rating of less than 30 percent. 6. Title 10, U.S. Code, section 1208 (Computation of service) – For the purposes of this chapter, a member of a regular component shall be credited with the service described in paragraph (a) or that described in paragraph (b), whichever is greater: a. The service that he/she is considered to have for the purpose of separation, discharge, or retirement for length of service. b. The sum of – (1) his/her active service as a member of an armed forces, (2) his/her active service as a member of the National Oceanic and Atmospheric Administration or the Public Health Service; and (3) his/her service while participating in exercises or performing duties under sections 502, 503, 504, and 505 of Title 32. c. A member of the armed forces who is not a member of a regular component shall be credited, for the purposes of this chapter, with the number of years of service that he would count if he were computing his years of service under section 12733 of this title. 7. Title 10, U.S. Code, section 12731 provides: a. The legal age and service requirements for Reserve non-regular retirement. It states that a person is entitled, upon application, to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. b. In the case of a person who completed the service requirements before 25 April 2005, the last 6 years of qualifying service must have been performed in a Reserve status, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve. c. Application for retired pay under this section must be made to the Secretary of the military department, or the Secretary of Homeland Security, as the case may be, having jurisdiction at the time of application over the armed force in which the applicant is serving or last served. d. A member, who would be eligible for retired pay under this chapter but for the fact that that member is under 60 years of age, may be transferred at his request and by direction of the Secretary concerned, to such inactive status list as may be established for members of his/her armed force, other than members of a regular component. DISCUSSION: 1. The applicant contends he should receive retired pay benefits and entitlements based upon completion of 20 years of qualifying service for non-regular retirement at ag e 60 or full medical retirement benefits instead of separation from the RA. 2. The applicant retired from the USMCR on 1 March 2004. He voluntarily was removed from the USMCR Retired List and was discharged in January 2006 to enlist in the CAARNG, with a medical waiver. 3. As he was enlisting in another armed force, he received a letter from the USMC stating the military branch of service that accepted his enlistment would be responsible for his retirement. At the time of his discharge from the USMCR, he was informed that the CAARNG should handle his non-regular retirement. This was appropriate advice based on law. 4. After 10 months in the CAARNG and upon his request, he was discharged from the CAARNG to accept an enlistment in the RA. He enlisted in the RA in November 2006. He underwent medical evaluation in accordance with the IDES based on a permanent profile for lower back pain. Subsequent to medical evaluations by both the Army and VA, it was determined he was medically unfit for continued service in the RA. A PEB in conjunction with the VA rating decision rated him at 20 percent for his lower back. He was appropriately counseled with his initial briefings in February 2010 and final PEBLO session in October 2010. He annotated the counseling form acknowledging he was aware of the Reserve Component retirement options for ARNG/USAR Soldiers who if they had 20 years of qualifying service for non-regular retirement, could elect transfer to the Retired Reserve list instead of electing separation with separation pay. He also acknowledged he knew and understood he had 1 year from the date of the VA rating decision to appeal it. There is no evidence he appealed the VA rating decision within the required period. By law, a member of the armed force is medically retired when their combined disability is 30 percent or higher. 5. By law, a member of the armed force may retire and receive retirement benefits upon completion of 20 years of active federal service. He elected discharge from the RA with severance pay because he did not have 20 or more years of active federal service. (He was credited with over 13 years of active federal service.) 6. The law does not authorize a member of the armed force to receive separation pay benefits for his RA service and retired pay for non-regular service. As he was a member of the RA, he was not eligible during his final PEBLO counseling to elect non-regular retirement based on receipt of his 20-year letter because he was not a member of the ARNG/USAR. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006150 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006150 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2