ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF: 

                   BOARD DATE:  15 February 2019

                   DOCKET NUMBER:  AR20160012500


APPLICANT REQUESTS: 

* correction of her records to show she was entitled to a 15-year retirement under the Temporary Early Retirement Authority (TERA)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Memorandum from the U.S. Army Physical Disability Agency (USAPDA), dated 
4 December 2008
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), approved by USAPDA on 4 December 2008
* Memorandum from USAPDA, dated 16 January 2013
* Orders 240-0017, issued by Headquarters, 1st Infantry Division and Fort Riley on 28 August 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 5 November 2013
* Certificate of Retirement, dated 5 November 2013

FACTS:

1.  The applicant states she was misled during his separation processing; she was led to believe she was not eligible for a 15 year retirement as she was being separated for medical reasons.  She believes she was, in fact, eligible for such a retirement.  

2.  The applicant enlisted in the Regular Army on 14 January 1997 and served on active duty for 16 years, 9 months and 22 days, until she was retired for physical disability on 5 November 2013.

3.  A PEB convened on 22 October 2008, which evaluated the applicant for cervical and lumbar intervertebral disc degenerative disease.  She was found fit for duty at that time and she concurred with the proceedings. 

4.  A PEB requested a rating determination from the Department of Veterans Affairs (VA) on 16 January 2013, based on the applicant's diagnosed:

* degenerative joint and disc disease of the cervical spine
* spondylolisthesis 
* degenerative joint and disc disease of the lumbar spine
* right metatarsal degenerative joint disease
* left metatarsal degenerative joint disease
* right hallux valgus
* left hallux valgus

5.  The applicant was medically retired on 5 November 2013, with a 30 percent (%) disability rating, and was placed on the Retired List the following day.

6.  In the processing of this case, an advisory opinion was obtained on 26 March 2016 from the Office of the Deputy Chief of Staff, G-1.  The advisory official recommended denial of the applicant's request, noting that a service member who is approved for TERA must not be under evaluation for disability retirement.  They provided copies of the pertinent regulations including Army Directive 2012-25 (TERA).   

7.  A copy of the advisory opinion was forwarded to the applicant.  She did not offer any additional comment.

BOARD DISCUSSION:

The Board considered the applicant’s request with all supporting documents, evidence in the service record, and applicable regulations, policy and guidance.  Army Directive 2012-25 (TERA) established that individuals pending evaluation for disability retirement under 10 U.S.C. Chapter 61 were not eligible for early retirement under that directive.  The applicant was retired under the provisions of AR 635-40 due to permanent disability on 5 November 2011 and was therefore ineligible for retirement under the TERA.  The Board denies the applicant’s request for correction of her records to show she was entitled to a 15-year retirement under the TERA.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

SIGNATURE:


				 			___________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.


ADMINISTRATIVE NOTE(S):
Not applicable.

REFERENCES:

Army Directive 2012-25, dated 24 September 2012, established the provisions and policies for eligibility for TERA.  It provided that Soldiers pending disability retirement under Title 10, U.S. Code, chapter 61, were not eligible for early retirement under TERA.

ABCMR Record of Proceedings (cont)	 AR20160012500
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