IN THE CASE OF: BOARD DATE: 24 August 2021 DOCKET NUMBER: AR20210006948 APPLICANT REQUESTS: in effect, correction of his military records to show he elected to transfer to the Retired Reserve and issued a 15-Year Letter, rather than accept his disability severance pay. 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) * NGB Form 23B (Army National Guard Retirement Points History Statement) * Disability Separation Order * Email Exchange FACTS: 1. The applicant states he understands the provisions of Army Regulation (AR) 635-40, Disability Evaluation for Retention, Retirement, or Separation, paragraph 4-27, the Physical Evaluation Board has determined that he is physically unfit and has elected to be transferred to the Retired Reserve. It appears from his NGB Form 23B (Army National Guard Retirement Points History Statement) or U.S. Army Reserve DA Form 5016 (Chronological Statement of Retirement Points) that he meets the criteria for a 15- year Notice of Eligibility. Pursuant to the authority contained in Title 10, U.S. Code, section 12731(b), he is entitled to apply for retirement benefits. He was never briefed or given an option to retire since he has over 18 years of qualifying service [toward non- regular retirement]. 2. Review of the applicant's service records shows: a. He was born in ___ 1977 and will turn 60 in ____ 2037. He had prior enlisted service in the U.S. Navy. b. He enlisted in the Army National Guard (ARNG) on 31 July 2006. He served through multiple extensions, in a variety of assignments, including periods of active duty mobilizations, and attained the rank/grade of staff sergeant (SSG)/E-6. c. On 23 October 2019, a formal physical evaluation board convened and found his medical condition of chronic lumbar strain unfitting. The Department of veterans Affairs proposed a 20% disability rating and the PEB determined his disposition as separation with severance pay. His case was adjudicated as part of the Integrated Disability Evaluation System (IDES). d. The applicant was counseled and concurred. He also indicated he does not request reconsideration of his VA rating. e. On 14 January 2020, the U.S. Army Physical Disability Agency published Orders D014-05 discharging him from the ARNG due to disability, at 20%, effective 28 February 2000. The order authorized him severance pay based on 6 years, 11 months, and 10 days of active service as computed under Title 10, U.S. Code, section 1208. g. He was discharged from the ARNG on 28 February 2020. His NGB Form 22 (National Guard Report of Separation and Record of Service), as amended by an NGB Form 22A (Correction to NGB Form 22) shows he completed 18 years, 2 months, and 9 days of ARNG service. h. His NGB Form 23B (Army National Guard Retirement Points History Statement) shows he completed 18 years, 2 months, and 9 days of qualifying service toward non- regular retirement. 3. By regulation (AR 635-40), paragraph 4-27(d)(2) (Election for 15-year notice of eligibility); Reserve Component (RC) Soldiers who are members of the Selected Reserve and have a disability disposition of separate with or without disability severance pay will be afforded the opportunity to make an election to transfer to the Retired Reserve under the provisions of 10 USC 12731b. A finding of unfit by the PEB or USAPDA is required for eligibility for the 15-year notice of eligibility when the RC Soldier’s disability was incurred in the Line of Duty or is compensable under the provisions of 10 USC 1207a. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board determined the applicant was not fully aware of the option to transfer to the Retired Reserves instead of receiving severance pay after being found unfit for military service. The Board agreed to grant relief and correct the record to show he was transferred to the Retired Reserves and was issued a 15-year letter. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. issuing him a 15-year letter b. amending his discharge orders to show he was released from the ARNG and transferred to the Retired Reserves; and c. coordinate with the NGB to amend block 23 of his NGB Form 22 to show he was transferred to the Retired Reserves instead of showing he received severance pay for medically unfit LOD with less than 15 years of qualified service 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, § 12731b - Special rule for members with physical disabilities not incurred in line of duty. a. In the case of a member of the Selected Reserve of a reserve component 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 purposes of section 12731 of this title, determine to treat the member 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 has completed at least 15, and less than 20, years of service computed under section 12732 of this title. b. Notification under subsection (a) may not be made if— (1) the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned; or (2)the disability was incurred during a period of unauthorized absence. 2. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), prescribes Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. Paragraph 4-27 (Final disposition by U.S. Army Physical Disability Agency) states in: a. Sub-paragraphs a through c provide for disposition authority and action. b. Sub-paragraph (d) Reserve Component (RC) Soldiers separating with or without disability severance pay. (1) 10 United States Code 1209 election. Under the provisions of 10 USC 1209, Ready Reserve Soldiers who have completed at least 20 qualifying years of Reserve service and who would otherwise be qualified for retirement for non-regular service may forfeit disability severance pay and request transfer to the Inactive Status List for the purpose of receiving non-disability retired pay at age 60 or at the age otherwise authorized by law. The USAPDA extends this election to the Ready Reserve Soldier being separated without entitlement to severance pay with 20 qualifying years. The Soldier will be afforded the opportunity to make their election when making elections to PEB or USAPDA findings. (a) The election will include the election to be transferred to the Retired Reserve in lieu of placement on the inactive status list. (Soldiers in the Retired Reserve receive continued service longevity.) (b) The PEBLO (PEB Liaison Officer) will advise the Soldier that they— (1) Forfeit all rights to future non-regular retired pay and a retired status when disability severance pay is accepted, and (2) The election becomes irrevocable on the date of the Soldier’s separation. (c) Soldiers of the Regular Army who may have completed 20 good years or otherwise have a 20-year letter are not authorized an election under 10 USC 1209. The Soldier may be released from active duty to the IRR and request transfer to the Retired Reserve. (2) Election for 15-year notice of eligibility. RC Soldiers who are members of the Selected Reserve and have a disability disposition of separate with or without disability severance pay will be afforded the opportunity to make an election to transfer to the Retired Reserve under the provisions of 10 USC 12731b as set forth below. (a) A finding of unfit by the PEB or USAPDA is required for eligibility for the 15- year notice of eligibility when—(1) The RC Soldier’s disability was incurred in the LOD or is compensable under the provisions of 10 USC 1207a, and (b) The RC officer is an obligated RC participant in the Health Professions Scholarship Program Financial Assistance Program. (b) The Selected Reserve Soldier is ineligible for the election if— (1) The disposition of separation without entitlement to disability severance pay is due to disability determined to be the result of the Soldier’s intentional misconduct, willful negligence, or was incurred during a period of unauthorized absence, and/or (2) The U.S. Army Human Resources Command determines that the Soldier’s disability was due to willful failure to comply with standards and qualifications for retention established by the Secretary of the Army or that the Soldier was not qualified to continue in the Ready Reserve for non-disability reasons. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006948 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1