ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20170009170 APPLICANT REQUESTS: correction of his records to show he was retired the under Temporary Early Retirement Authority (TERA) in lieu of permanent physical disability retirement. 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) covering the period 24 October 2004 through 25 January 2006 * U.S. Army Physical Disability Agency Cover Sheet * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * memorandum, dated 27 April 2009 * DD form 214 Worksheet, covering the period 24 October 2004 through 27 July 2009 * undated, unlabeled document showing what are presumed to be Department of Veterans (VA) Affairs disability ratings * VA letter, dated 31 March 2016 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 (ABCMR) 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: a. He was medically retired after 18 years of active service and wants to change his physical disability retirement to TERA retirement. Officials at the Defense Finance and Accounting Services (DFAS) informed him he can collect both his VA and Army disabilities as well as Combat Related Special Compensation (CRSC) if retired under TERA. b. In 2009, he was not aware of any of this when he was retired. When a Soldier is hit with a medical board and told 2 months later that he is being medically retired, that doesn’t give him a lot of time to plan anything. He was retired with no job and no income for 2 years before he found a part-time job. Then he was told since he didn’t complete 20 years of active federal service, he didn’t get 100 percent of his retired pay. He could have completed another 5 to 9 years if not for the medical retirement and not being told about TERA. 3. The applicant enlisted in the Regular Army on 7 December 1982 and was honorably released from active duty on 6 December 1985 and transferred to the U.S. Army Reserve Control Group (Reinforcement). 4. He enlisted in the Army National Guard (ARNG) on 7 January 1987 and transferred to ARNG Active Duty under Title 32, USC, State Controlled (Active Guard/Reserve ARNG of the U.S.) on 15 December 1996. 5. An Office of the Adjutant General, California National Guard memorandum, dated 30 October 2002, notified the applicant of his completion of the required 20 years of service for eligibility for retired pay at age 60. 6. He served in a designated imminent danger pay area in Kosovo from 6 February 2005 through 11 January 2006. 7. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings, dated 16 April 2009, shows the applicant underwent a PEB on the date of the form as an Active Guard/Reserve ARNGUS member. The form shows the following: a. He was found unfit for obstructive sleep apnea with a recommended disability percentage of 50 percent b. He was found unfit for chronic bilateral knee pain diagnosed as patellofemoral pain syndrome with a recommended disability percentage of 20 percent. c. He was found unfit for right shoulder pain due to impingement syndrome, with a recommended disability percentage of 20 percent. d. The board found the applicant physically unfit and recommended his permanent disability retirement with a combined rating of 70 percent. e. The applicant concurred with the findings of the PEB and waived a formal hearing of his case on 23 April 2009. 8. An NGB Form 23B (ARNG Retirement Points History Statement), prepared on 5 June 2009, shows effective 28 September 2008, he was credited with 26 years of service toward retired pay. 9. His DD Form 214 covering the period 24 October 2004 through 27 July 2009, shows he was retired due to permanent disability on 27 July 2009 and transferred to the U.S. Army Reserve (USAR) Control Group (Retired). He was credited with 12 years, 7 months, and 13 years of net active service this period, with 5 years, 6 months, 11 days of total prior active service and 8 years, 8 months, and 6 days of total prior inactive service. 10.A review of the Human Resources Command Soldier Management System shows the applicant was transferred from the USAR Retired Reserve (current organization “R”) to the Permanent Disability Retired List (current organization “7”) effective 28 July 2009. 11. The applicant provided an undated, unlabeled document that is presumed to show his VA rated disabilities, which shows the following service-connected ratings: * patellofemoral pain syndrome, right knee, 10 percent * tinnitus, 10 percent * impingement syndrome, right shoulder, 10 percent * patellofemoral pain syndrome, left knee, 10 percent * bilateral hearing loss, 0 percent * post-traumatic stress disorder, non-combat, 30 percent * diabetes mellitus, type II, 20 percent 12. He also provided a letter from the VA, dated 31 March 2016, which shows his combined service-connected evaluation is 60 percent effective 1 December 2015. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board noted the applicant was not retired due to permanent disability during a period when the statute authorized retirement under TERA in lieu of retirement for disability. As such, the Board concluded a preponderance of the evidence shows no error or injustice in the applicant's retirement for disability. 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. 1/23/2020 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, USC, 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 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. Title 10, USC, 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 is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. 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. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 4. Title 10, USC, section 1201, provides for the physical disability retirement of a member 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 who has less than 20 years of service and a disability rating of less than 30 percent. 5. Public Law 102-484, section 4403 of the Fiscal Year 1993 National Defense Authorization Act, dated 23 October 1992, was the first authorization to allow the U.S. Army to create an early retirement program, the Temporary Early Retirement Authorization (TERA) for Active Component and Active Guard and Reserve Soldiers who had completed 15 years of Active Federal Service (AFS), but less than 20 years of AFS at their separation date and who requested retirement in lieu of separation. 6. Title 10 USC, section 12731 (Age and service requirements) provides the legal age and service requirements for age and service for Reserve non-regular retirement. It states that, upon application, a person is entitled 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. 7. Title 10 USC, section 12731a (Temporary special retirement qualification authority) provides for retirement with at least 15 years of service. The Secretary concerned may, during the period described in the subsection below, determine to treat a member of the Selected Reserve of a Reserve Component (RC) of the armed force under the jurisdiction of that Secretary as having met the service requirements of 10 USC 12731, subsection (a)(2), and provide the member with the notification required by subsection (d) of that section if the member: a. as of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title; or b. after that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and c. upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. d. The period referred to (in a(2), above) is the period beginning 23 October 1992 and ending 31 December 2001. 8. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. 9. Department of Defense Instruction Number 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability; making administrative determinations for Service members with Service-incurred or Service aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty. Enclosure 3 (Procedures), Part 7 (Final Disposition), paragraph E3.P7.2 (General Rules Regarding Disposition), subparagraph E3.P7.2.1.1, provides that members with a disposition of separation for physical disability who have 15 but less than 20 years of service computed under Title 10, USC, section 1208 (10 USC 1208) and whose unfitting conditions are not due to the member’s intentional misconduct or willful neglect or incurred during a period of unauthorized absence, shall be afforded the opportunity to elect separation for physical disability or to apply for, and if approved, non-disability retirement under the Temporary Early Retirement Authority (TERA) under Title 10 USC 3911 during the period of temporary special qualification authority beginning on 23 October 1993 and ending on1 October 2001. Further, the same opportunity shall be afforded to members recommended for placement on or separation from the Temporary Disability Retired List. 10. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that 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. NOTHING FOLLOWS