IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150006863 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 IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150006863 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. IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150006863 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, correction of his records to show entitlement to combat-related special compensation (CRSC) effective December 2006 rather than January 2008. He also requests a personal appearance before the Board. 2. The applicant states, in effect, he was originally transferred from the Georgia Army National Guard (GAARNG) to the Retired Reserve on 31 December 2006. He applied to this Board for referral into the Integrated Disability Evaluation System (IDES). The Board granted him relief and he was considered by a medical board that yielded a 90 percent disability rating for various conditions and permanent retirement. In January 2014 he was issued orders permanently retiring him effective 31 December 2006. When he applied for CRSC, his request was approved in July 2014 at 100 percent effective January 2008. It was explained to him that CRSC is subject to the 6-year statute of limitations. The Defense Finance and Accounting Service (DFAS) referred him to this Board for correction of his records. 3. The applicant provides: * Multiple letters from DFAS * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Retired Reserve orders * Congressional correspondence * July 2014 CRSC decision * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the GAARNG on 19 March 1988 and he held military occupational specialty 19K (M-1 Armor Crewman). He served through multiple extensions and attained the rank/grade of master sergeant (MSG)/E-8. 2. He entered active duty on 6 December 2004 and served in Kuwait/Iraq from 18 May 2005 to 3 September 2005. He was honorably released from active duty on 7 July 2006 by reason of completion of his required service. 3. On 14 August 2006, the GAARNG issued him a Notification of Eligibility for Retired Pay at age 60 (20-Year Letter). 4. On 3 January 2007, the GAARNG published orders discharging him from the ARNG and transferring him to the Retired Reserve effective 31 December 2006. His NGB Form 22 shows he completed 21 years, 8 months, and 27 days of total service for retired pay. 5. On 5 April 2011, following his application, this Board granted him relief with regard to referral to the IDES and consideration by a medical evaluation board/physical evaluation board (MEB/PEB). 6. A PEB found him unfit due to various medical/physical conditions involving muscle damage, thigh, buttocks, and hips, and rated him at a 90-percent disability rating with a recommendation of permanent retirement. 7. On 31 January 2014, the U.S. Army Physical Disability Agency published orders to place him on the permanent disability retired list in the grade of E-8 effective 31 December 2006 at the rate of 90 percent, in accordance with Title 10, U.S. Code, section 1204. 8. On 30 July 2014, by letter, the U.S. Army Human Resources Command (HRC) approved his application for CRSC at the rate of 100 percent effective June 2008. 9. On 29 December 2014, also by letter, HRC informed the applicant that his CRSC compensation was subject to the 6-year statute of limitations (Title 31, U.S. Code (USC), section 3702(b)). The letter also informed him that his CRSC eligibility was backdated to January 2008. 10. On 16 March 2015, following back and forth correspondence, DFAS advised him that changes to his account must be addressed to this Board. REFERENCES: 1. Department of Defense Regulation 7000.14-R (Financial Management Regulation), Volume 7B, Chapter 63, pertains to CRSC. Section 630202 (Expanded Eligibility) states, as of 1 January 2008, section 641 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008, provided special rules for CRSC for eligible retirees with fewer than 20 years of service, to include members who have waived their retired pay in order to receive VA disability compensation. This expanded authority includes both Title 10, USC, Chapter 61 (10 USC 1201-1222) disability retirees and Temporary Early Retirement Authority retirees. However, a uniformed services Reserve Component retiree who receives retired pay for early retirement with physical disabilities under 10 USC 12731b is specifically excluded from entitlement to CRSC by 10 USC 1413(a)(c)(1) . 2. Title 31, USC, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 3. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. With respect to the personal appearance, the applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. With respect to CRSC: a. The applicant served in the GAARNG from 19 March 1988 to 31 December 2006. He was separated from the ARNG and transferred to the Retired Reserve on 31 December 2006. He appealed to this Board for a medical separation and he was subsequently referred to the IDES. A PEB permanently retired him under Title 10, USC, section 1204 (chapter 61) by reason of permanent retirement. b. He applied for CRSC and was approved at a 100-percent rate effective June 2008. However, HRC informed him that his entitlement was adjusted to January 2008 (for most of his medical conditions). c. Section 630202, chapter 63, Volume 7B of the DOD Financial Management Regulation pertains to CRSC. This section states that as of 1 January 2008, section 641 of the FY 2008 NDAA provided special rules for CRSC for eligible retirees with fewer than 20 years of service, to include members who have waived their retired pay in order to receive VA disability compensation. This expanded authority includes both 10 USC, Chapter 61 (10 USC, 1201-1222) disability retirees. d. Because the applicant retired by reason of disability (chapter 61), his CRSC award is dated back to date the program he qualifies for went into effect, which is 1 January 2008. There is no error or injustice in his case. //NOTHING FOLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006863 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1