IN THE CASE OF: BOARD DATE: 2 March 2023 DOCKET NUMBER: AR20170019630 APPLICANT REQUESTS: correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 February 2015 to show his narrative reason for separation as "sufficient service for retirement" instead of "disability permanent (enhanced)." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 – Member 4 copy * DFAS-CL Form 7220 (Retiree Account Statement) for 25 October 2017 * Department of Veterans Affairs (VA) letter to applicant, dated 1 November 2017 FACTS: 1. The applicant states he has 25 years of active federal service in the Regular Army which qualifies him for retirement based on sufficient length of service (20 years of active federal service) in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges). His DD Form 214 shows in Block 28 (Narrative Reason for Separation) the statement "disability permanent (enhanced)." He states at the time of his separation he was informed by staff at the Military Retirement Office in that he could accept the disability retirement and still receive 100 percent of his authorized retired pay for 20 or more years of active federal service. He further was told he would receive his full VA disability compensation pay. When he received his military retiree pay statement it shows a VA waiver of $245.00 per month is deducted from his retired pay. He further states he is entitled to receive full Concurrent Retirement and Disability Pay (CRDP) because his VA rating is 80 percent service-connected. He claims once his DD Form 214 is corrected, he will no longer have the VA waiver withdrawn from his retired pay. This correction will allow him to receive full CRDP. 2. On 6 February 1990 the applicant enlisted in the Regular Army. He served continuously reenlisting or extending his initial enlistment. He served as an information technology specialist and is credited with two deployments to Iraq in support of Operation Iraqi Freedom. 3. A review of the applicant’s Enlisted Record Brief shows on 24 July 2012 or thereabouts he was assigned to Headquarters and Headquarters Battalion, U.S. Army Pacific Command located at Fort Shafter, Hawaii. His duty title was Information Systems Chief. 4. On 26 August 2013 the applicant completed a DA Form 4187 (Personnel Action) requesting voluntary retirement effective 1 September 2014. With his retirement application he requested a waiver of his active duty service obligation. Within his DA Form 2339 (Application for Voluntary Retirement) he acknowledged reading Section V of Chapter 12 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) wherein he was required to undergo a medical examination prior to his date of retirement to protect his interests and the interests of the Government. 5. Also on 26 August 2013, he completed and signed a memorandum wherein he requested an 11-month waiver of his time on station on his current overseas tour for the purpose of retirement. He stated his current (obligatory) release from overseas assignment date was 25 July 2015. His reasoning was he had over 25 years of service which was sufficient for voluntary retirement and he was ready to start a new chapter in his life. 6. His unit first sergeant recommended approving his request for voluntary retirement on 5 September 2013. 7. On 25 September 2013, Headquarters, U.S. Army Garrison, Hawaii forwarded the applicant’s retirement application to the U.S. Army Human Resources Command (HRC) for its review and consideration. HRC is the approval authority for Regular Army Soldiers who request voluntary retirement based on sufficient length of service to retire. 8. On 10 October 2013 HRC, by memorandum, denied the applicant’s request for voluntary retirement. The memorandum states, "Soldiers accompanied by Family members who traveled at Government expense must complete the prescribed 'with Family members' tour or at least 12 months from the date of arrival of Family members, whichever is longer. Soldier has provided insufficient justification to support a DEROS [date eligible for return from overseas] waiver." 9. On 3 September 2014, his records underwent an informal physical evaluation board (PEB) at Joint Base Lewis McChord, Washington after a medical evaluation board conducted its assessment at Tripler Army Medical Center, Fort Shafter, Hawaii. (His MEB records are not available for the Board’s review as they are not filed in his official military personnel file.) The PEB found him physically unfit recommending a rating of 30 percent with his disposition permanent disability retirement. His two unfitting diagnoses were lumbar degenerative disc disease rated at 20 percent and right shoulder adhesive capsulitis rated at 10 percent. These two conditions were deemed not combat related or incurred in a combat zone by the PEB based of the evidence of record. There were numerous medical conditions that met U.S. Army retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). As they met retention standards, they were not found to be unfitting and were not ratable under the disability evaluation system process and procedures. 10. A DA Form 199 (Informal PEB) was completed recording the outcome of the PEB. Section VI (Instruction and Advisory Statements) states the applicant’s case was adjudicated as part of the Integrated Disability Evaluation System in accordance with Department of Defense Instruction 1332.18 (Disability Evaluation System (DES)), dated 5 August 2014. Additionally it states, "Soldier has over 20 years of active federal service." Section VIII (PEB Liaison Officer (PEBLO)/Soldier's Counsel Statement) shows he was informed of the findings and recommendations of the PEB and that his counselor explained the results of the findings and recommendations. The counselor signed and dated the form on 4 September 2014. 11. On 4 September 2014, the applicant authenticated his DA Form 199 stating he concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. He further stated he did not request reconsideration of his VA ratings. This DA Form 199 is filed in his official military personnel record. 12. In accordance with the findings and recommendation of the PEB, the Directorate of Human Resources, U.S. Army Garrison-Hawaii published Orders 280-0010 on 7 October 2014 reassigning the applicant to the Schofield Barracks Transition Center at Fort Shafter. This order contains instructions pertaining to the applicant’s pending retirement. Additionally, it directs his release from assignment and duty because of physical disability incurred while entitled to basic pay and authorizes his retirement for permanent physical disability. His effective date of retirement was established as 12 February 2015 with placement on the retired list on 13 February 2015. His retirement rank is master sergeant/pay grade E-8. His percentage of disability is 30 percent. He was permanently retired under the provisions of Title 10, U.S. Code, section 1201 (Regulars and members on active duty for more than 30 days: retirement) and under Title 10, U.S. Code, section 1372 (Grade at retirement for physical disability) at 25 years, 5 months and 16 days of active federal service in accordance with Title 10, U.S. Code, section 1405 (Years of service). The regulatory guidance directing his retirement is Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation – Rapid Action Revision). 13. Accordingly, he was retired on 12 February 2014. He was issued a DD Form 214 documenting his service and reason for release from active duty. His rank and pay grade are master sergeant/pay grade E-8. His DD Form 214 contains the following pertinent information: * Block 12c (Record of Service – Net Active Service This Period) – the entry 25 years, 00 months, 7 days * Block 12d (Record of Service – Total Prior Active Service) – the entry 5 months and 9 days (Total of 12c and 12d equals 25 years, 5 months and 16 days) * Block 23 (Type of Separation) – retirement * Block 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-40, chapter 4 * Block 26 (Separation Code) – "SEJ" * Block 28 (Narrative Reason for Separation) – Disability, Permanent (Enhanced) 9. The applicant provided the following evidence in support of his application: a. His 1 December 2017 Retiree Account Statement showing he is receiving retired pay in the rank and grade of master sergeant/E-8. Among the deductions shown on this statement is a VA waiver in the amount of $245.00. Within this statement is a message pertinent to the applicant. It states, "Based on the compensation amount you receive from the Department of Veterans Affairs (VA) and your retired pay, your Concurrent Retirement Disability Pay (CRDP) amount is $1,536.13." He was further advised to review the Defense Finance and Accounting Service (DFAS) website for more information. b. He provided a letter from the VA, dated 1 November 2017, showing he was rated 80 percent for his service-connected disabilities. His current monthly award amount at the time was $1,781.13. (The offset or VA waiver is the difference between his VA award amount and his CRDP. The calculation is $1,781.13 - $1,536.13 = $245.00.) BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board found no evidence of error in the reason and authority for retirement shown on the applicant’s DD Form 214. He was retired by reason of permanent disability, and his DD Form 214 correctly shows the reason and authority for that type of retirement. The Board determined the evidence does not support the relief he has requested. 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. 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. Army Regulation 40-501 provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a physical evaluation board (PEB). Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Chapter 4 provides guidance on referring Soldiers for evaluation by a medical evaluation board (MEB) when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. a. Public Law 110-181 defines the term, physical DES, in part, as a system or process of the DOD for evaluating the nature of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments. It is composed of MEBs, PEBs, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. b. The objectives of the DES are to maintain an effective and fit military organization with maximum use of available manpower. Secondly, it is to provide for eligible Soldiers whose military service is terminated because of disability incurred in the line of duty. Finally, it promptly provides disability processing while ensuring the rights and interest of the Government and Soldier are protected. c. The PEBLO must inform the Soldier about the DES process, their right to a PEB, and the potential benefits of remaining in an active duty status. Paragraph 4-4 (Waiver of DES), subparagraph 4-4b(2) states, "Soldiers who are pending permanent or temporary disability retirement and who are eligible for a length of service retirement at the time of their disability evaluation may elect to be retired for disability or for length of service. However, when retirement for length of service is elected, the Soldier’s retirement date must occur no later than the date the Soldier would have been retired for disability." d. A MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40-501 (Standards of Medical Fitness). The MEB will be composed of two or more physician members. One of the physician’s will prepare the narrative summary. The senior medical officer will serve as the board chairman and will have detailed knowledge of regulations pertaining to standards of medical fitness and disability separation processing. No individual will serve as both the MEB appellate authority and PEB approval authority. e. A PEB will determine a Soldier’s fitness for retention, separation or retirement for disability under the provisions of 10 U.S. Code chapter 61 or separation from duty without entitlements to disability benefits authorized under the same paragraph. It states, "The PEB also makes certain administrative determinations that may have benefit implications under other provisions of law." f. A Soldier will be considered unfit when the preponderance of evidence establishes that the Soldier, due to disability, is unable to reasonably perform the duties of their office, grade, rank, or rating (hereafter call duties) to include duties during a remaining period of Reserve obligation. g. Unless reserved for higher authority, U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues the disposition instructions to the Transition Center for Soldiers separated or retired for physical disability from an active duty status h. Permanent disability retirement is directed under Title 10, U.S. Code, section 1201 or Title 10, U.S. Code, section 1204, as applicable, when the Soldier is determined unfit for continued service and has a compensable disability in accordance with the standards of this regulation, and the disability(ies) are permanent and stable or, subject to the requirements in chapter 5 concerning certain mental diagnosis, the disability rating will not improve to less than 80 percent. Secondly, the Soldier has at least 20 years of service as computed under Title 10, U.S. Code, section 1208 (see Department of the Army (DA) Pamphlet (DA PAM 635–40) (Procedures for Disability Evaluation for Retention, Retirement, or Separation) for explanation of this computation) or the Soldier has a combined disability rating of at least 30 percent. 3. DA PAM 635–40 stablished procedures for determining a disposition when a Soldier’s medical conditions may prevent the Soldier from satisfactorily performing their duties. The Soldier may be separated, retired, and retained to perform their current duties, or reclassified into different duties. Paragraph 3-12 states in accordance with Title 10, U.S. Code, sections 1201 and 1204, a Soldier determined unfit for compensable disability is granted disability retirement if the Soldier has either 20 years of service as computed under Title 10, U.S. Code 1208 or a minimum disability rating of 30 percent. It is important that PEBLOs, PEB adjudicators, and transition centers understand the computation of this service, as it can mean the difference between a disability retirement and a disability separation with severance pay when the Soldier does not have the minimum 30 percent. In general, the computation is the sum of the Soldier’s active service, the Soldier’s equivalent years of service for the Soldier’s membership, and/or inactive duty training points. For regular retirement, this combination of service is called Title 10, U.S. Code, section 1405 service. Unlike regular retirement in which the Title 10, U.S. Code, section 1405 service is listed only after the Soldier obtains 20 years of active Federal service, equivalent years of service is counted for disability retirement in meeting the 20-year threshold. 4. Title 10, U.S. Code, 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 less than 30 percent. 5. Title 10, U.S. Code, section 1405 provides for the computation of the years of service of a member of the Armed Forces under a provision of this title providing for such computation to be made under this section, the years of service of the member are computed by adding, in pertinent part, his years of active service. In determining a member’s years of service each full month of service that is in addition to the number of full years of service creditable to the member shall be credited as 1/12 of a year, and any remaining fractional part of a month shall be disregarded. 6. 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. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 8. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidated the policies, principles of support, and standards of service regarding processing personnel for transition. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior action, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on terminations of a Soldier’s service. When separation is ordered, the separation approval document must be present for transition processing these included the Enlisted Record Brief or Officer Record Brief, separation approval documents, separation orders and any other document authorized for filing in the personnel records. 9. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 12 (Retirement for length of service) provides for the procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers who are retiring in their enlisted status. Years of service for retirement are computed by adding all active federal service in the Armed Forces and service computed under Title 10, U.S. Code, section 3925. A Soldier who has completed 20 but less than 30 years of active federal service in the U.S. Armed Forces may be retired at his or her request under the provisions of Title 10, U.S. Code, section 3914. The Soldier must have completed all required service obligations at the time of retirement. Service obligations for Soldiers serving overseas it states, in pertinent part, Soldiers accompanied by Family members who traveled at Government expense must complete the prescribed “with Family members) tour or at least 12 months from the date of the arrival of Family members, whichever is longer. 10. The Defense Finance and Accounting Service (DFAS) website states CRDP allows military retirees to receive both military retired pay and VA compensation. This was prohibited until the 1 January 2004 CRDP law was enacted. CRDP is a "phase in" of benefits that gradually restores a retirees VA disability offset. This mean that an eligible retiree’s retired pay will gradually increase each year until the phase-in is completed by January 2014. a. One does not apply for CRDP, if qualified you are automatically enrolled by DFAS. The eligibility requirements include a regular retiree (sufficient length of active federal service) with a VA disability rating of 50 percent or higher. Additionally, if a Soldier is retired due to disability who earned entitlement to retired pay under any provision of law other than solely by disability and who has a VA disability rating of 50 percent or higher, might be eligible for CRDP at the time they would become eligible for retired pay. b. The VA waiver or VA offset by law requires that a military retiree waive a portion of their gross DoD retired pay, dollar for dollar, by the amount of their VA disability compensation. Some retirees who receive VA disability compensation may also receive CRDP that makes up for the part or all of the DoD retired pay that they waive to receive VA disability pay. Further, when the VA determines that a retiree is eligible to receive disability compensation or when there is a change in VA disability compensation, a retiree’s retired pay and CRDP pay accounts may need to be adjusted. The website states: The administrative process for creating or updating a DoD retired pay, and/or a CRDP account requires coordination between DFAS and the VA. Because of the time lag in reporting between two organizations, this nearly always creates a set of debits and credits that must be applied to prior months (referred to as retroactive debits and credits). When you have a retroactive VA disability change that applies to prior years, the debits and credits will need to be applied to prior years. Whenever your VA disability rating changes, please expect an increased payment from the VA to be counter-balanced by a decreased retired pay payment. The increased VA waiver may, in turn, result in an increase in your CRDP payment. Managing your DoD retired pay and your VA disability pay includes planning for these offsetting, retroactive credits and debits. When you receive an increased VA disability payment, it is important that you are prepared for a decrease in your retired pay payment (because of the VA waiver). It is also important to be prepared that sometimes you may need to repay DoD retired pay you received in prior months or years because it was affected by an increase in your VA disability rating/pay which applies to those prior months or years. c. DFAS periodically audits CRDP pay accounts to ensure that all adjustments were made correctly. ABCMR Record of Proceedings (cont) AR20170019630 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1