ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

                   BOARD DATE:  28 January 2019

                   DOCKET NUMBER:  AR20160013397


APPLICANT REQUESTS:  in effect, correction of his record to show he completed 20 years of active duty service.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states:

* he requests a waiver of the 2 months and 26 days needed to complete his 20 years of military service for purposes of retirement for length of service
* he is willing to serve on active duty for the time necessary to fulfill the requirements for 20 years of service
* he would then need a 20 year service letter and a DD Form 214 that reflects 20 years of active Federal service (AFS)
* while awaiting discharge from the Temporary Disability Retired List (TDRL), he was inadvertently released with only 2 months and 26 days left to attain 20 years of honorable active service
* this oversight means he is not receiving his military pension
* his pension was stopped in approximately May 2012, which he feels was a mistake not perpetrated on purpose
* ultimately, the result is he is being slighted in the most tragic of ways
* he served 99.99 percent of an honorable 20-year career, only to be jilted in the end
* his next recourse would be to appeal to the Commander in Chief or in a Federal Court
3.  After 6 years, 2 months, and 11 days of prior active service, the applicant entered active duty on 23 August 1988, when he was commissioned as a warrant officer.

4.  His DD Form 214 shows he was placed on the TDRL on 16 March 2002, after completion of 13 years, 6 months, and 23 days of net active service this period.  With his 6 years, 2 months, and 11 days of prior active service, his total AFS was 19 years, 9 months, and 4 days, which was 2 months and 26 days less than the AFS he needed to be eligible for retired pay based on length of service.

5.  On 30 September 2005, a PEB convened.  The DA Form 199 shows:

* his disability was bipolar disorder, type I, after hospitalization in February 2004, requiring psychotropic medication and significant industrial instability
* he was unemployed and the disability was rated as a definite social and industrial impairment
* the PEB noted the applicant had 19 years and 9 months of AFS
* based on a review of the TDRL examination, the PEB found the applicant remained unfit to reasonably perform the duties required by his previous grade and military specialty
* his current condition was considered sufficiently stable for final adjudication
* the PEB recommended a combined rating of 30 percent and that the applicant’s disposition be permanent disability retirement
* he concurred with the findings and recommendations

6.  He was removed from the TDRL on 17 October 2005 and placed on the Permanent Disability Retired List (PDRL) on the same date with a 30 percent disability rating.

7.  It is unknown if the applicant receives a service-connected disability payment from the Department of Veterans Affairs (VA) effective 2012.  It is presumed that if he is receiving a VA disability payment that it is offset by his military retired pay, which is the cause of his pay issues which he states began in 2012.  

8.  Concurrent Retirement and Disability Pay (CRDP) allows military retirees to receive both military retired pay and VA compensation, which was prohibited prior to the program inception.  To be eligible for CRDP, an individual placed on a disability retirement must have been eligible for military retired pay in the absence of the disability (i.e., must have completed 20 or more years of service qualifying for retirement) and must receive a VA disability rating of 50 percent or greater.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the U.S. Army Physical Disability Agency will remove a Soldier from the TDRL on the fifth anniversary of the date the Soldier’s name was placed on the list, or sooner on the approved recommendation of a PEB.  If the Soldier meets the criteria below, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay:

* the Soldier is unfit
* the disability that caused the Soldier’s name to be placed on the TDRL has become permanent
* the disability is rated at 30 percent or more or the Soldier has at least 20 years of AFS

10.  Army Regulation 600-8-24 (Officer Transfers and Discharges), prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Any warrant officer with 20 years AFS may upon request and the approval of the Secretary of the Army be retired.  Voluntary retirement eligibility is determined by AFS.  To determine whether an officer may be retired voluntarily, the years of AFS are computed by adding all active service.

BOARD DISCUSSION:

After reviewing the application and all supporting evidence, to include the applicant’s statement, the Board determined no injustice or error is present.  The Board found that his medical condition, based upon the PEB, does not meet the standard for continued military service and he currently does not meet the criteria for retirement outlined in AR 635-40.   For that reason, the board denied the applicant’s submitted application.

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.




				 ___________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.



REFERENCES:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the U.S. Army Physical Disability Agency will remove a Soldier from the TDRL on the fifth anniversary of the date the Soldier’s name was placed on the list, or sooner on the approved recommendation of a PEB.  If the Soldier meets the criteria below, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay:

* the Soldier is unfit
* the disability cause the Soldier’s name to be placed on the TDRL has become permanent
* the disability is rated at 30 percent or more or the Soldier has at least 20 years of AFS

3.  Army Regulation 600-8-24 (Officer Transfers and Discharges), prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Any warrant officer with 20 years AFS may upon request and the approval of the Secretary of the Army be retired.  Voluntary retirement eligibility is determined by AFS.  To determine whether an officer may be retired voluntarily, the years of AFS are computed by adding all active service.

4.  Per the Defense Finance and Accounting Service website, Concurrent Retirement and Disability Pay (CRDP) allows military retirees to receive both military retired pay and VA compensation.  This was prohibited until the CRDP program began on 
1 January 2004.

     a.  CRDP is a “phase in” of benefits that gradually restores a retiree’s VA disability offset.  This means that an eligible retiree’s retired pay will gradually increase each year until the phase in is complete, effective January 2014.

     b.  You must be eligible for retired pay to qualify for CRDP.  If you were placed on a disability retirement, but would be eligible for military retired pay in the absence of the disability, you may be entitled to receive CRDP.

     c.  You may be entitled to CRDP if:


* you are a regular retiree with a VA disability rating of 50 percent or greater
* you are a reserve retiree with 20 qualifying years of service, who has a VA disability rating of 50 percent or greater and who has reached retirement age
* you are retired under Temporary Early Retirement Act and have a disability rating of 50 percent or greater
* you are a disability retiree who earned entitlement to retired pay under any provision of law other than solely by disability, and you have a VA disability rating of 50 percent or greater

ABCMR Record of Proceedings (cont)	 AR20160013397


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