BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150017437 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: 21 March 2017 DOCKET NUMBER: AR20150017437 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: 21 March 2017 DOCKET NUMBER: AR20150017437 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 The applicant, in effect, requests his retirement orders be rescinded and he be referred to the Physical Disability Evaluation System (PDES) [now known as the Integrated Disability Evaluation System (IDES)] for possible discharge or retirement due to physical disability. 2. The applicant states: a. He would have elected to have his case evaluated under the PDES, had he not relied on guidance provided by a New York Army National Guard (NYARNG) Human Resource (HR) Specialist. This individual's misrepresentation of retirement benefits, coupled with his own reasonable, detrimental reliance on this guidance, resulted in the loss of more than $60,000.00 in retirement income over five years. This hardship has forced him out of retirement and into a low-paying factory job to combat a diminished quality of life. b. He elected retirement and waived the PDES process based on the erroneous pension amount provided to him by the NYARNG HR Specialist. After retirement, the HR Specialist informed him that she originally misrepresented his pension amount and that the actual amount would be substantially less. If the HR Specialist's original representation was correct, he would undoubtedly have elected the PDES process. 3. The applicant provides a letter from Counsel, dated 29 September 2015, and the following items marked as exhibits: * Exhibit 1 – Privacy Act Disclosures * Exhibit 2 – Sworn statement, dated 27 September 2015 * Exhibit 3 – Email confirmation between the HR Specialist and Counsel * Exhibit 4 – Joint Force Headquarters – New York letter, dated 18 May 2015 * Exhibit 5 – ARNG Current Annual Statement, dated 4 November 2014 * Exhibit 6 – Notification of Medical Disqualification, dated 22 October 2014 * Exhibit 7 – FERS Benefit Estimate Report, dated 9 December 2014 * Exhibit 8 – Terminations of Technician Appointment, dated 15 December 2014 * Exhibit 9 – Termination of Technician Appointment, dated 16 January 2015 * Exhibit 10 – FERS benefit Estimate Report, dated 20 January 2015 * Exhibit 11 – Medical history/diagnosis spanning the years 2002 through 2015 * Exhibit 12 – Department of Veterans Affairs (VA) Entitlement Decision letter, dated 23 February 2015 COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, that the applicant's retirement orders be rescinded and that the applicant be referred to the PDES for possible discharge or retirement due to physical disability. 2. Counsel states: a. The applicant was counseled on 9 December 2014 by Ms. AP, an NYARNG HR Specialist, as confirmed by Ms. AP in an email dated 1 April 2015. Based on the original misrepresentation outlined in the 9 December 2014 estimate provided by Ms. AP, the applicant elected to cooperate and waive his right to the PDES process. The applicant was provided with a new estimate from Ms. AP on 20 January 2015, following his election to cooperate with the involuntary separation, confirming that her original representation was approximately $60,000.00 greater, over six years, than what he will actually be receiving in retirement. b. It was both an error and injustice for the applicant to be misled into waiving his right to the PDES process based solely on the substantial and life-altering misrepresentation made by Ms. AP, an NYARNG HR Specialist. He reasonably and detrimentally relied upon a devastating misrepresentation made by his employer's specialist in the retirement benefits field. The applicant would surely have elected the PDES board had he known of the substantial misrepresentation. c. The applicant served the last 35 years of his life as a U.S. Marine and as a drilling member of the NYARNG. He spent the last 18 years as a Military Service Technician as well. On 6 December 2014, he received a Notice of Medical Disqualification Letter advising him that he no longer met the medical requirements for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. He was notified at that time that he must choose to be discharged or request a PDES board. d. While contemplating which of the two options to choose, the applicant was directed to Ms. AP, the point of contact for entitlements, benefits and administrative procedures for the NYARNG. Ms. AP provided the information to be used in determining which of the two options was more beneficial to him. On 9 December 2014, three days after the notice, he was provided with the original FERS Benefit Estimate Report from Ms. AP. Naturally, he relied heavily on the information that she provided. The report is titled "FERS Benefit Estimate Report," with the applicant's name. The first year "Unreduced Monthly Annuity" listed in this report is $3,394.00, switching to $2,262.87 after the first year. He elected to cooperate with the separation based exclusively on the information provided in this document, which he received from Ms. AP. e. On 15 December 2014, he received the Termination of Technician Appointment memorandum advising him that his appointment as a Program Analyst was being terminated because he was to be discharged from the NYARNG. His termination was classified as involuntary. f. On 16 January 2015, he was notified that he qualified for a Discontinued Service Retirement - Military Service Technician (DSR-MRT). He was also notified at that time that his appointment would be terminated on 20 February 2015. g. On 20 January 2015, the applicant received a different FERS Benefit Estimate Report from Ms. AP, wherein his gross monthly annuity was listed as $1,665.00, which was roughly half of the number that was originally presented to him by Ms. AP in the 9 December 2014 estimate, thereby inducing him to waive the PDES process. Based on the new FERS Benefit Report, he will receive approximately $60,000.00 less over the next six years than he was originally led to believe. h. The applicant is a loyal and honorable man and has sustained substantial service-connected injuries at a time when he was selflessly serving his country. Those injuries are so substantial that he is no longer medically fit for retention. He relied heavily upon the 9 December 2014 misrepresentation provided by Ms. AP, an NYARNG HR Specialist, which specified an erroneous level of compensation. This reasonable and justifiable reliance will effectively cost him $60,000.00 over the next six years. i. If not for the extremely inaccurate estimate provided by the HR Specialist, he would have selected the PDES option. Clearly, that option is the more beneficial of the two. They ask the Board to exercise its authority and grant him the opportunity to receive the care and attention that he has given the Marines and the Army over the past four decades. They respectfully request that the Board rescind the retirement orders and grant this life-long Veteran the right and opportunity to undergo a PDES board. CONSIDERATION OF EVIDENCE: 1. Following prior service in the U.S. Marine Corps, the applicant enlisted in the ARNG on 15 March 1984. He enlisted for military occupational specialty (MOS) 68H (Aircraft Maintenance Technician) and was assigned to Headquarters and Headquarters Services Company, 1st Battalion, 142nd Aviation Regiment; a unit of the NYARNG. 2. The applicant was awarded MOS 15Z (Aircraft Maintenance Senior Sergeant) as his primary MOS effective 31 May 2002. 3. The applicant was promoted to the rank/grade of master sergeant/E-8, effective 31 May 2002. 4. The applicant's record shows he received a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) from the NYARNG on 19 June 2000. 5. According to the applicant's sworn statement, he began to experience foot pain while deployed to Bosnia in 2002. 6. The applicant provides several Chronological Records of Medical Care that were completed since November 2002. These medical records show he was treated for knee and foot pain through October 2014. A physician stated his x-rays demonstrate significant tri-compartmental osteoarthritis of both knees, and diagnosed him with bilateral knee osteoarthritis on 8 October 2014. The physician further stated they would like to see him again to ask him when he would like to consider knee replacement surgery. 7. There is no record of a permanent medical profile within the applicant's record. 8. The NYARNG provide the applicant with a Notification of Disqualification on 22 October 2014. The memorandum notified the applicant: a. It was determined that he no longer met the Army medical standards for retention in accordance with Army Regulation 40-501, Chapter 3. b. He must choose to be discharged or request a PDES board. c. If he did not respond, he could be medically discharged 45 days after the suspense date of 6 December 2014, with no appeal except to the Army Board for Correction of Military Records (ABCMR). d. To review his records and ensure that the applicable line of duty (LOD) investigations were complete and on file, and to make a selection and return the correspondence by the suspense date. 9. A NYARNG letter to the applicant's Counsel, dated 18 May 2015, informed Counsel the applicant elected, on 2 December 2014, to forgo the PDES board in favor of a separation from the ARNG with greater than 15 years of creditable service. 10. The applicant's ARNG Current Annual Statement confirms he had more than 15 years of creditable service at the time of his separation election on 2 December 2014. 11. A FERS Benefit Estimate Report, dated 9 December 2014, shows the applicant was informed he could receive a disability retirement annuity in the gross monthly amount of $3,394.00. Email correspondence between the applicant's Counsel and an NYARNG HR Specialist who assisted the applicant, shows the HR Specialist confirmed she gave him the FERS Benefit Estimate Report on 9 December 2014. 12. Orders 345-1024, issued by the NYARNG on 11 December 2014, ordered the applicant's honorable discharge from the ARNG and transfer to the Retired Reserve effective 18 January 2015. 13. The applicant received a termination of technician appointment memorandum from the NYARNG on 15 December 2014. The memorandum notified him: a. He would be discharged from the NYARNG on 17 January 2015, because he no longer met the medical retention standards, and his appointment as a Program Analyst, must be terminated. b. He had begun the process of applying for disability retirement; therefore, his last day in technician status would not be determined until the Office of Personnel Management (OPM) made a decision on his application. Once a decision was made by OPM, his separation would be immediate. c. His separation was classified as involuntary. He was provided with points of contacts regarding his entitlements, benefits, and administrative procedures. The HR Specialist is listed as one of the points of contact. 14. The applicant received another termination of technician appointment memorandum from the NYARNG on 16 January 2015. The memorandum notified him: a. It was determined that he qualified for a Discontinued Service Retirement – Military Service Technician (DSR-MRT). The DSR-MRT takes precedence over a disability retirement, and his appointment as Management and Program Analyst would be terminated on 20 February 2015. b. His separation classification was classified as involuntary. He was provided with points of contact regarding his entitlements, benefits, and administrative procedures. The HR Specialist was listed as one of the points of contact. 15. An NGB Form 22 for the period ending 18 January 2015 shows the applicant was honorably discharged from the ARNG and transferred to the Retired Reserve. 16. A FERS Benefit Estimate Report, dated 20 January 2015, shows the applicant was informed he could receive a DSR-MRT retirement annuity in the gross monthly amount of $1,665.00. Email correspondence between the applicant's Counsel and the HR Specialist who assisted the applicant, shows the HR Specialist confirmed she gave him the FERS benefit estimate report on 20 January 2015. 17. A VA Entitlement Decision letter, dated 23 February 2015, shows the applicant was rated as 50 percent (%) disabled due to service-connected injuries upon his retirement from the ARNG. Amongst the ratings, he received a rating of 10% for his left knee and 10% for his right knee. 18. In the processing of this case, an advisory opinion was obtained on 11 October 2016 from the Deputy Chief, Personnel Policy Division, National Guard Bureau, Arlington, VA. This official stated: a. The NGB recommended disapproval of the applicant's request that his retirement orders be rescinded and that he be granted the opportunity to undergo the IDES process. b. The applicant received notification of medical disqualification on 22 October 2014. He was given the option to request discharge from the NYARNG or to request evaluation through the IDES process. On 2 December 2014, he chose to request separation and waive the IDES process. c. He contends his decision to waive IDES process was a result of an inaccurate estimate provided regarding DSR-MRT. This retirement was a benefit of his service as a Military Technician for the NYARNG. The Human Resource Specialist for the NYARNG is listed as the point of contact for him to discuss his benefits. The HR Specialist provided two estimates to him which varied significantly. The first was provided on 9 December 2014 and the second (lower) estimate provided on 20 January 2015, following the separation of the applicant from the NYARNG on 18 January 2015. He explained his decision to decline the IDES process was based off of the much higher estimate provided initially. He claims, in his statement,"If she [Ms. AP] would have properly informed me of what I was to receive if I elected retirement, I would have elected the Medical Evaluation Board." Yet, he is reported to have made the decision to waive the IDES process on 2 December 2014; one week prior to receiving the initial estimate from Ms. AP. d. As a Military Technician, he has the ability to receive retirement as a technician and, additionally, receive the benefits entitled to him as a service member. The applicant states the decision reached as a Soldier was based on the information provided to him as a Military Technician. Although an individual must be a service member to retain their employment as a Military Technician, the benefits associated with each are completely independent. Regardless of the decision he made as a Soldier (whether to undergo the IDES process or separate), he remained eligible to receive his DSR-MRT. Just the same, he could have opted for the IDES process whether he received the original estimate or the second estimate. The amount of the DSR-MRT would have no effect on the decision he made on his medical processing as a Soldier. e. Although it is evident there was error in the information provided to this individual concerning his Military Technician benefits, the Soldier in this case is not disputing the DSR-MRT. The Soldier contends that he should be allowed to undergo the IDES process to seek medical retirement, yet, there is no evidence to support an error or injustice occurred in the medical processing or discharge of this individual. The Soldier was thoroughly counselled on the ramifications of waiving the IDES process and he still chose to be medically discharged. Additionally, there was no Line of Duty (LOD) to support the possibility of a service-connected injury and there is little evidence to support the Soldier would have received a 30% disability rating - the minimum rating required for a medical retirement. For this reason, I recommend disapproval of the Soldier's request to have his retirement orders rescinded and for him to undergo the IDES process. Yet, because he did serve thirty-five years of good service and was placed in the Retired Reserve upon his discharge, when the Soldier reaches age sixty, he will be entitled to his military retirement in addition to the DSR-MRT f. The National Guard Bureau Labor/ Employee Relations Branch, and the NYARNG both concurred with the recommendation. 19. The applicant was provided a copy of the advisory opinion, for his information and to provide him an opportunity to comment or rebut the opinion. He did not respond. REFERENCES: 1. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides guidance on the various medical conditions and physical defects that may render a Soldier unfit for further military service, and that fall below the standards required for service. These medical conditions and physical defects, individually or in combination, are those that: significantly limit or interfere with the Soldier’s performance of their duties; may compromise or aggravate the Soldier’s health or well-being if the Soldier were to remain in the military Service; may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the Government if the individual Soldier were to remain in the military Service. b. Paragraph 3-4 (General Policy) provides that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions listed below to an MEB. It is critical that MEBs are complete and reflect all of the Soldier’s medical problems and physical limitations. The PEB will make the determination of fitness or unfitness. The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB, as well as the requirements of the Soldier’s MOS, in determining fitness. c. Chapter 7 (Physical Profiling), paragraph 7-11a(3)(d), provides that the DA Form 3349 will specify the profile type - temporary or permanent. If the profile is permanent, the profiling officer must assess whether the Soldier meets the retention standards of Army Regulation 40-501, chapter 3. Those Soldiers who meet retention standards but have at least a permanent "3" or "4" PULHES serial will be referred to an MMRB in accordance with Army Regulation 600–60 (Physical Performance Evaluation System), unless waived by the MMRB convening authority. Those Soldiers who do not meet retention standards must be referred to an MEB in accordance with chapter 3. d. Chapter 10 (ARNG) provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG and Army National Guard of the United States (ARNGUS) Soldiers. Paragraph 10-25 (Soldiers pending separation for failing to meet medical retention standards) provides that: (1) Soldiers with non-duty related impairments are eligible to be referred to a PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier. The Soldier will have a completed LOD or memo that notifies him or her of non-duty related findings (Not in the Line of Duty – NILOD). The Soldier may not challenge the PEB findings in person. (2) Soldiers pending separation for in the line of duty (ILOD) injuries or illnesses will be processed in accordance with Army Regulation 40–400 (Patient Administration) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 office, grade, rank, or rating. a. Paragraph 1-1 (Purpose) provides that the Army PDES was established under the provisions of Title 10, U.S. Code (USC), Chapter 61, (10 USC 61) and Department of Defense Directive (DoDD) 1332.18 (Disability Evaluation System (DES)). It 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The objectives of the PDES are to: * maintain effective and fit military organizations with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected b. Paragraph 2–10 (Board Elements) provides that the Army PDES consists of Medical Evaluation Boards (MEB), which are a function of the Army Medical Department (AMEDD), Physical Evaluation Boards (PEB) conducted under the auspices of the USAPDA, and case reviews, when applicable, as conducted by the USAPDA. c. Paragraph 3-1 (Standards of Unfitness because of Physical Disability) provides that the mere presence of 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. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. Paragraph 3-2b (Presumptions – Processing for Separation or Retirement from Active Service) provides, in pertinent part, that 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. e. Paragraph 3-4 (LOD Decisions) provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training (IDT) and (2), the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. f. Paragraph 3-5 (Use of the VA Schedule from Rating Disabilities (VASRD)) provides, in pertinent part, that only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. g. Chapter 4 (Eligibility for Disability Evaluation) provides, in pertinent part, that the following individuals/entities may refer a Soldier into the Army PDES: (1) The Commander, U.S. Army Human Resources Command (HRC), upon the recommendation of The Surgeon General, may refer a Soldier to the responsible medical treatment facility (MTF) for medical evaluation when a question arises as to the Soldier’s ability to perform the duties of his or her office, grade, rank, or rating because of physical disability. (2) Commanders of MTFs who are treating Soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the Soldier’s physical ability to perform the duties of their office, grade, rank, or rating. (3) When a commander believes that a Soldier of their command is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for evaluation. The request for evaluation will be in writing and will state the commander’s reasons for believing that the Soldier is unable to perform his or her duties. h. Paragraph 4-10 (MEB) provides that MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status. A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40–501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. i. Paragraph 4-17 (PEB) provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendations may be revised. It is a fact-finding board for the following: (1) Investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. (2) Evaluating the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating. (3) Providing a full and fair hearing for the Soldier as required by under Title 10, USC, Section 1214, (10 USC 1214). (4) Making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability (10 USC 61). j. Chapter 8 (Reserve Components), paragraph 8-2 (Eligibility), provides that Reserve component Soldiers are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training. k. Paragraph 8-3 (Proximate Result) provides, in pertinent part, that in order for Reserve Component Soldiers to be compensated for disabilities incurred while performing duty for 30 days or less, to include IDT, there must be a determination by the PEB that the unfitting condition was the proximate result of performing duty. This determination is different from an LOD determination which establishes whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved. Proximate result establishes a causal relationship between the disability and the required military duty. l. Paragraph 8-6 (Medical Processing) provides, in pertinent part, that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation. The MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation. The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition. If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. If the Soldier is not eligible for referral to a PEB, the MTF will notify the Soldier’s unit commander for disposition under applicable regulations. m. Paragraph 8-9 (Disposition) provides that a Soldier not on extended active duty, who is unfit because of physical disability: (1) May be permanently retired or have his or her name placed on the TDRL, if: he or she has at least 20 years of service; his or her disability is rated at 30 percent or more; or his or her disability occurred in the line of duty and was the proximate result of performing active duty or IDT. (2) May be separated with severance pay if: his or her disability is rated at less than 30 percent; he or she has less than 20 years of service; or his or her disability occurred in the line of duty and was the proximate result of performing active duty or IDT. (3) May forfeit severance pay; be transferred to the Retired Reserve; and receive under the provisions of Title 10, U.S. Code, Section 12731, (10 USC 12731) non-disability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the retired Reserve is requested. According to the provisions of 10 USC 1209 and 1213, all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve. Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay. (4) Will be separated without benefits when: the unfitting condition results from injury which is due to intentional misconduct or willful neglect; the disability was incurred during a period of unauthorized absence; or the disability was not incurred or aggravated as the proximate result of performing duty as specified in paragraph 8–2. 3. National Guard Regulation 600-200 governs the policies and procedures for assigning, attaching, removing, and transferring enlisted Soldiers of the ARNG/ARNGUS. Paragraph 6-35l(8), of the regulation in effect at the time, provided for the separation of ARNG Soldiers who are medically unfit for retention per Army Regulation 40-501. Commanders, who suspected that a Soldier may not have been medically qualified for retention, would direct the Soldier to report for a complete medical examination per Army Regulation 40-501. Commanders who did not recommend retention would request the Soldier’s discharge. When the medical condition was incurred in line of duty, the procedures of Army Regulation 600-8-4 would apply. Discharge would not be ordered while the case was pending final disposition. 4. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, HRC, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DoDD 1332.18 and Army Regulation 635-40. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. The applicant requests that his retirement orders be rescinded and that he be referred to the PDES for possible discharge or retirement due to physical disability. 2. The applicant was informed by the NYARNG on 22 October 2014 that he no longer met medical retention standards IAW Army Regulation 40-501. He was given a suspense date of 6 December 2014 to elect to undergo the PDES (now IDES) process, or he would be medically discharged within 45 days of the suspense date. 3. The applicant contends he was initially informed by an HR Specialist that he would receive a gross monthly annuity benefit of $3,394 if he retired without going through the PDES. Evidence shows the initial gross monthly annuity was given to him on 9 December 2014. He contends he made his election not to undergo the PDES process because of the estimate given by the HR Specialist. 4. Evidence shows the HR Specialist provided him a second estimate based off of medical disability retirement on 20 January 2015 in the amount of $1,665, two days after he was transferred to the Retired Reserve. He contends he would have elected to go through the PDES process if the HR Specialist did not give him the higher estimated amount on 9 December 2014. 5. Evidence shows the applicant met the 6 December 2014 suspense required by the NYARNG in reference to his notification of medical disqualification by responding on 2 December 2014. He elected not to undergo the PDES process on that date. 6. The applicant's Counsel confirmed via email with the HR Specialist the date she initially provided the applicant the monthly gross estimate of $3,394. She replied the date was 9 December 2014, the same date printed on the estimate. This date is seven days after the applicant met the NYARNG suspense to elect to undergo the PDES or choose not to do so. This evidence shows the applicant did not elect to decline the PDES based off of the HR Specialist's initial monthly gross annuity estimate. 7. The applicant was properly transferred to the Retired Reserve after he did not elect the PDES. He made his decision not to undergo the PDES before receiving any monthly annuity estimates from the HR Specialist. There appears to be no error or injustice in during his separation processing. He will be eligible for non-regular retired pay upon reaching age 60. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017437 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2