IN THE CASE OF: 

		BOARD DATE:  27 October 2022

		DOCKET NUMBER: AR20190005041


APPLICANT REQUESTS:  review of his February 2000 physical evaluation board 
(PEB) and assignment of a 10% disability rating for potential increase to a higher rating 
that could have qualified him for permanent disability retirement. He also requests a 
personal appearance. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:
DD Form 293 (Application for the Review of Discharge) 

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code, 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, in effect, an informal PEB assigned him a 10% disability rating. 
Since he had completed 15 qualifying years of service towards non-regular retirement, 
he elected to transfer to the Retired Reserve instead of taking the severance pay. He 
believes there are questions concerning his discharge that need further clarification. Did 
he meet a medical evaluation board (MEB)? Was the 10% rating a result of that MEB? 
Did the Army and the Department of Veteran Administration take part in the evaluation? 
Was he medically discharged? He requests clarification. A review of his military service 
records reflects that his supervisors had concerns due to his physical condition. If he 
was unable to perform his duties due to severe medical problems, this should not have 
been an issue. Actions taken against him created problems for him and his family. 
There seems to be personal feeling involved in deciding his retirement. The colonel in-
charge seems to have decided he would not receive his benefits in which he had 
earned. The officer stated he would see to it personally thar he (the applicant) would not 
receive what he was in entitled to base on his years of service. He requests a review of 
his service and an evaluation of his performance to see if he is being retaliated against 
for action of another. If he was retired with a 10% MEB evaluation, he should be able to 
receive Military ID for himself and his dependents. He should have had the options to 
stay on TRICARE. He should be able to receive any monetary wages due to wages lost. 

3.  The applicant was born on and turned 60 years of age on 

4.  He enlisted in the Army National Guard (ARNG) on 25 July 1979. He entered active 
duty for training from 24 September 1990 to 23 January 1991 and completed training for 
award of military occupational specialty 94B (Food Service Specialist). 

5.  He was honorably discharged from the ARNG on 24 July 1991. His NGB Form 22 
(Report of Separation and Record of Service) shows he completed 12 years of Army 
National Guard service. 

6.  After a break in service, he enlisted in the ARNG on 1 October 1993. He served in a 
variety of assignments and was advanced to sergeant/E-5. 

7.  Although his DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) is not 
available, other evidence shows an MEB convened and after consideration of clinical 
records, laboratory findings, and physical examinations, the MEB found the applicant 
was diagnosed as having the medically unacceptable condition of chronic low back 
pain. The MEB recommended his referral to a physical evaluation board (PEB). 

[The MEB Process is the first step of the medical discharge process. The MEB 
is a process designed to determine whether a Service member’s long-term 
medical condition enables him/her to continue to meet medical retention 
standards, in accordance with military service regulations. It also provides an 
opportunity for military physicians to clearly document all care and treatments 
received prior to MEB referral and any duty limitations their condition may 
cause. The MEB does not assign disability rating.] 

8.  On 15 February 2000, an informal PEB convened and based on a review of the 
objective medical evidence of record, the PEB found that the applicant’s medical and 
physical impairment prevents reasonable performance of duties required by grade and 
military specialty. His DA Form 199 (PEB Proceedings) shows he was physically unfit 
due to chronic low back pain. The PEB rated his disability under the VA Schedule for 
Rating Disabilities (VASRD), under codes 5299/5295, and assigned a 10% disability 
rating. The PEB recommended his separation with entitlement to severance pay, if 
otherwise qualified. The applicant concurred with the findings and recommendation and 
waived his right to formal hearing of his case.

9.  On 5 March 2000, the applicant signed a memorandum and sent it through the 
President, Texas Physical Evaluation Board, Fort Sam Houston, TX to the Commander, 
U.S. Army Physical Disability Agency, Subject: Intent to Request Early Retirement 
Under TERA (Temporary Early Retirement Act). He stated: 

	a.  As a result of my physical disability, I am being separated from the Army with 
severance pay. In lieu of this separation, I intend to submit application for early 
retirement under the provisions of the TERA program.

	b.  I understand that my physical disability evaluation case will be held at the U.S; 
Army Physical Disability Agency until my application is approved or disapproved.

10.  On 6 April 2000, the applicant submitted a DA Form 4187 (Personnel Action) 
indicating that he had completed 15 but less than 20 qualifying years of service towards 
non-regular retirement. He requested to be transferred to the Retired Reserve. 

11.  On 19 July 2000, by memorandum, the Deputy Chief of Staff, FLARNG informed 
the applicant that his retirement from the FLARNG has been approved with an effective 
date of 1 Aug 2000. Discharge orders are enclosed. After fifteen years of service, he is 
being transferred to the USAR Control Group (Retired) and being placed on the Florida 
Retired List. 

12.  On 17 July 2000, FLARNG published Orders P199-026 discharging the applicant 
from the FLARNG and transferring him to the Retired Reserve effective 1 August 2000, 
in accordance with paragraph 8-27u of National Guard Regulation 600-200 (Enlisted 
Personnel Management). 

13.  The applicant’s NGB Form 23A (ARNG Retirement Points Statement) show she 
completed 16 qualifying years of service towards non-regular retirement. 

14.  On 17 July 2000, the FLARNG issued the applicant a Notification of Eligibility fir 
Retired Pay at Age 60 (15-Year Letter). The letter notified him of his early qualification 
for eligibility to receive non-regular retired pay upon attaining age 60, in accordance with 
the provisions of the National Defense Authorization Act for Fiscal Year 1993, Public 
Law 102-484, Section 4417.

15.  On 11 June 2018, as he approached age 60, the applicant submitted a DD Form 
108 (Application for Retired Pay Benefits) requesting to retire on his 60th birthday. 

16. On 18 November 2019, the U.S. Army Human Resources Command published 
Orders retiring the applicant and placing him on the retired list effective his birthday 

17. The applicant does not provide any additional or new medical evidence or explain 
what and where the error and/or injustice is. 

18.  The law (10 USC section 1201) authorizes physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30%, and 
(10 USC section 1203) authorizes physical disability separation of a member who has 
less than 20 years of service and a disability rating of less than 30%.

19.  MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  

    a.  The applicant is applying to the ABCMR seeking answers to several questions 
concerning his disability processing in 2000 and his retirement:

“Veteran states in the years up to his discharge from the Army/NG he received 
10%.  Questions concerning his discharged need further clarification, first, did the 
veteran meet a Medical Evaluation Board? Second, that 10% was it a result of 
that MEB.  Third, did the Army and the Veteran Administration take part in the 
evaluation? Was the veteran Medically discharged? Request clarification of these 
questions.

    b.  The Record of Proceedings outlines the applicant’s military service and the 
circumstances of the case.  His Army National Guard Retirement Points History 
Statement (NGB Form 23A) shows he has 16 years, 0 months and 0 days of creditable 
service of retired pay.  Orders published by the U.S. Army Human Resources 
Command show he was placed on the AUS Retired list effective 9 November 2019.

    c.  The applicant was evaluated by a medical evaluation board (MEB), found to have 
a medical condition which failed medical retention standards in chapter 3 of AR 40-501, 
Standards of Medical Fitness, and his case was forwarded to a physical evaluation 
board for adjudication.  

    d.  On 15 February 2000, a physical evaluation board found his “Chronic low back 
pain without neurologic abnormality” his sole unfitting medical condition for continued 
military service.  Using the VA Schedule for Rating Disabilities (VASRD), they derived 
and applied a 10% rating to this condition and recommended he be separated with 
disability severance pay.  On 5 March 2000, the applicant concurred with the PEB and 
waived his right to a formal hearing.

    e.  Rather than take the severance pay, and because the applicant had 15 but less 
than 20 years of service for retired pay, he opted to transfer to the retired reserve under 
Temporary Early Retirement Authority, or TERA. This program allows members to retire 
with a minimum of 15 years of active-duty service instead of the traditional 20 years of 
service.  From his 5 March 2000 memorandum:

“As a result of my physical disability, I am being separated from the Army with 
severance pay.  In lieu of this separation, I intend to submit an application for 
early retirement under the provisions of the TERA program.”

    f.  His request was approved.  He received a “Notification of Eligibility for Retired Pay 
at Age 60 with 15 Years of Service” dated 17 July 2000.   A 19 July 2000 memorandum 
from the Deputy Chief of Staff, Personnel, for the Florida Army National Guard states 
his request was approved:

“Your retirement from the Florida Army National Guard has been approved with 
an effective date of 1 Aug 2000.  Discharge orders are enclosed.  After fifteen 
years of service, you are being transferred to the USAR Control Group (Retired) 
and being placed on the Florida Retired List.”

    g.  The applicant was placed on the AUS Retired list on 9 November 2019, his 60th 
birthday.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined 
relief was not warranted. The applicant’s contentions, the military record, and regulatory 
guidance were carefully considered.  Based upon the available documentation and the 
findings of the medical advisory, the Board concluded there was insufficient evidence of 
an error or injustice which would warrant a change to the applicant’s disability rating 
and/or a change to the applicant’s narrative reason for separation.  



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.  Title 10, U.S. Code (USC), section 1552(b), provides that applications for correction 
of military records must be filed within 3 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 3-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) in effect at the establishes the Army Physical Disability Evaluation System 
(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 or her office, grade, rank, or rating.  It states there is no legal 
requirement in arriving at the rated degree of incapacity to rate a physical condition that 
is not in itself considered disqualifying for military service when a Soldier is found unfit 
because of another condition that is disqualifying. 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.

	a.  When a Soldier has a rating of less than 30 percent and has at least 20 qualifying 
years for retirement for non-regular service: "You have the option of accepting 
discharge with disability severance pay and forfeiting retirement for non-regular service; 
or you may request transfer to the Retired Reserve and receive retired pay at age 60. 
According to sections 1209 and 1213, title 10 United States Codes (10 USC1209 and 
1213), you will forfeit all rights to retired pay if you accept severance pay instead of 
transfer to the Retired Reserve."

	b.  A Reserve Component Soldier may forfeit severance pay; be transferred to the 
Retired Reserve; and receive under the provisions of section 1331, title 10, United 
States Code (10 USC 1331) non-disability retired pay it 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 cannot be repaid for the 
purposes of receiving retired pay 

3.  Title 10, U.S. Code, section 12731, provides that a non-regular service member is 
entitled, upon application, to retired pay if the person is at least 60 years of age and has 
performed at least 20 years of qualifying service. Sub-section (a) (Temporary special 
retirement qualification authority, Retirement With At Least 15 Years of Service), states 
for the purposes of section 12731 of this title, the Secretary concerned may (1) during 
the period described in subsection (b), determine to treat a member of the Selected 
Reserve of an RC of the armed force under the jurisdiction of that Secretary as having 
met the service requirements of subsection (a)(2) of that section 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 (2) upon the request of the member submitted to the Secretary, 
transfer the member to the Retired Reserve.  The period referred to in subsection (a)(1) 
is the period beginning on 23 October 1992 and ending on 31 December 2001.

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%.  
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 at less than 30%.

5.  The VASRD is used by the Army and the VA as part of the process of adjudicating 
disability claims.  It is a guide for evaluating the severity of disabilities resulting from all 
types of diseases and injuries encountered as a result of, or incident to, military service.  
This degree of severity is expressed as a percentage rating which determines the 
amount of monthly compensation. 

6.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct. The ABCMR is 
not an investigative body and decides cases based on the evidence that is presented in 
the military records provided and the independent evidence submitted with the 
application. The applicant has the burden of proving an error or injustice by a 
preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing or 
request additional evidence or opinions.  Additionally, applicants do not have a right to a 
hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

7.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to 
ensure that an applicant seeking corrective action by the Army Review Boards Agency 
(ARBA) be provided with a copy of any correspondence and communications (including 
summaries of verbal communications) to or from the Agency with anyone outside the 
Agency that directly pertains to or has material effect on the applicant's case, except as 
authorized by statute. ARBA medical advisory opinions and reviews are authored by 
ARBA civilian and military medical and behavioral health professionals and are 
therefore internal agency work product. Accordingly, ARBA does not routinely provide 
copies of ARBA Medical Office recommendations, opinions (including advisory 
opinions), and reviews to Army Board for Correction of Military Records applicants 
(and/or their counsel) prior to adjudication.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190005041


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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