IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230005773 APPLICANT REQUESTS: in effect * to be retired under the Temporary Early Retirement Authority (TERA) * if TERA is not granted, credible years of service to qualify for a non-regular retirement * or in the alternative a 15-year Notice of Eligibility due to being unfit medically * a personal appearance before the Board via video or telephonically APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Headquarters (HQs), Joint Readiness Training Center and Fort Polk Orders Number 341-0006 * DD Form 214 (Certificate of Release or Discharge from Active Duty) service ending 25 January 2002 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * HQs, Louisiana National Guard Office of the Adjutant General Orders Number 199-004 * DA Form 199 (Physical Evaluation Board (PEB)) Proceedings * U.S. Army Physical Disability Agency (USAPDA) Memorandum, Subject: Removal from Temporary Disability Retired List (TRDL) (Physically Fit) * USAPDA Orders Number D105-1 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 in effect, he requests to be retired under TERA with 18-years and 8-months of credible service. If he is not granted retirement under TERA, he requests to be awarded credible years of service to his NGB Form 23 (Army National Guard (ARNG) Current Annual Statement) to apply for non-regular retirement pay. He was placed on the TRDL until he was found fit for duty on 15 April 2005. When he was removed from the TRDL he never received his orders which stated he was removed. He was unable to pass the entrance physical to enlist back into the Army due to other medical conditions that were not associated with his medical condition that placed him on the TDRL. He was told the TERA application was submitted. He was awarded a 100 percent permanent and total disability rating from the Department of Veterans Affairs and he was able to receive a Department of Defense identification card and had access to Tri-Care 3. A review of the applicant's service record shows: a. The applicant's DD Form 214 (Report of Separation from Active Duty) shows the applicant entered active duty on 31 March 1975 and was honorably released from active duty on 30 March 1979. It also shows the applicant completed 4-years of active service with 2-years, 5-months and 1-days of prior active service. b. The applicant enlisted in the ARNG on 2 October 1989. c. The applicant's service record is void of evidence he was ordered to active duty in an Active Guard/Reserve status. d. The applicant entered active duty on 11 December 1989. e. The applicant extended his enlistment on 30 April 1998 for a period of 6 years. f. On 7 December 2001, Orders Number 341-0006, issued by HQs, Joint Readiness Training Center and Fort Polk, the applicant was placed on the TDRL on 26 January 2002 with a 30 percent disability with 18-years, 6-months and 16-days for disability retirement under the authority of Title 10, USC, section 1202. g. The applicant was honorably retired on 25 January 2002 and assigned to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) due to temporary disability. DD Form 214 shows the applicant completed 12-years, 1-month, and 15-days of active service. h. NGB Form 22 shows he was honorably released from the ARNG on 25 January 2002. It also shows the applicant completed a total of 18-years, 8-months and 25-days for pay and retired pay. i. On 2 March 2005, the PEB found the applicant fit for duty and recommended he be returned to duty as fit. It found the applicant's former disability, specifically status post nephrectomy for papillary renal cell carcinoma had been resolved. There were no restrictions which would preclude him from returning to military service and no prohibition against normal physical activities expected for reasonable performance. On 15 March 2005, the applicant concurred with the PEB findings and waived a formal hearing. j. On 15 April 2005: (1) Orders Number D105-1, issued by USAPDA, the applicant was found fit for duty and was removed from the TDRL, effective 13 May 2005. (2) USAPDA notified the 2nd Recruiting Brigade the applicant was removed from the TRDL pursuant to Orders Number D105-1 and would be afforded the opportunity to reenlist in the Army Reserve. k. The applicant's DA Form 5016 (Retirement Accounting Statement), dated 22 December 2022, shows he had 0-year, 0-month and 0-days of qualifying for retirement. 4. On 14 June 2023, in the processing of this case, the Office of the Deputy Chief of Staff G1 provided an advisory opinion regarding the applicant's request for retirement under TERA. The advisory official recommended disapproval of the applicant's request, he was placed on the TDRL and subsequently found fit for duty on 13 May 2005. He did not report back to duty and did not request retirement under TERA. There is no provision to extend him receipt of TDRL to meet the requirement for retirement once found fit for duty. Soldiers must be authorized retirement under TERA and would subsequently be authorized to receive credit toward retired pay if they obtained employment in the public service or a recognized community service organization. The applicant never returned to duty, nor did he submit or receive approval for an early retirement. 5. On 23 June 2023, the Army Review Boards Agency, Case Management Division, provided the applicant the advisory opinion for review and comment. He did not respond. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the Office of the Deputy Chief of Staff G-1 advisory opinion, the Board concurred with the advising official finding the applicant was placed on the Temporary Disability Retirement List (TDRL) and was subsequently found fit for duty on 13 May 2005. The G-1 opine noted, the applicant did not report back to duty and did not request retirement under TERA. There is no provision to extend the applicant receipt of TDRL to meet the requirement for retirement once found fit for duty. 2. The Board agreed that Soldiers must be authorized retirement under TERA and would subsequently be authorized to receive credit toward retired pay if they obtained employment in the public service or a recognized community service organization. Based on the evidence and advisory opine, the Board denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. ADMINISTRATIVE NOTE(S): NA REFERENCES: 1. Title 10, 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 (AR) 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 may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 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. 3. Title 10 USC, section 1210 (Members on temporary disability retired list) periodic physical examination; final determination of status), (f) (1) If, as a result of a periodic examination under subsection (a), or upon a final determination under subsection (b), it is determined that the member is physically fit to perform the duties of his office, grade, rank, or rating, the Secretary shall: (A) treat the member as provided in section 1211 of this title; or (B) discharge the member, retire the member, or transfer the member to the Fleet Reserve, Fleet Marine Corps Reserve, or inactive Reserve under any other law if, under that law, the member: (i) applies for and qualifies for that retirement or transfer; or (ii )is required to be discharged, retired, or eliminated from an active status. 4. Department of Defense Financial Management Regulation 7000.14-R, volume 7B (Retired Pay), chapter 1, paragraph 010105 (Temporary Early Retirement Authority (TERA)), the TERA provides the Secretary of Defense a temporary force management tool with which to affect the drawdown of military forces and yet maintain an adequate and effective well trained military force. TERA provides the authority for voluntary retirement of members on active duty with at least 15 years, but less than 20 years of creditable service. An eligible member of the Armed Forces may apply for early retirement under the program and receive an annuity equivalent to 2.5 percent of retired pay base for each year of service completed and a deduction of one percent for each year short of 20 years of service. The request is subject to the approval of the Secretary concerned. A member of the Armed forces who is approved for early retirement must: * be currently serving on active duty * complete 15 or more years of active service upon the effective date of retirement * not be under evaluation for disability retirement; and * meet grade, skill, years of service, and other eligibility criteria as established by the Secretary of the Military Department concerned 5. Department of Defense Instruction 1332.46 (TERA For Service Members), establishes policy, assigns responsibilities, and provides procedures for the administration of TERA. TERA Program Procedures, eligibility, to be eligible for early retirement, a Service member must: * be currently serving on active or full-time National Guard * complete 15 or more years of active service upon the effective date of retirement * meet grade, skill, years of service, and other eligibility criteria as established by the Secretary of the Military Department concerned and as provided in this issuance and Section 4403 of the NDAA for FY 1993 6. AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), establishes Army policy for U.S. Army Reserve (USAR) training and retirement point credit. It also prescribes guidance for USAR unit level strength accounting. a. Paragraph 1-7, service requirement for a satisfactory year of service for non- regular retirement A qualifying year of service for non-regular retired pay is a full year during which a RC member is credited with a minimum of 50 retirement points. Except as otherwise provided by law, an accumulation of 20 such years is one requirement necessary to qualify for non-regular retired pay. b. Paragraph 2-2 (Criteria for earning retirement points), retirement points may be earned by USAR Soldiers for active duty or duty in an active status for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), voluntary IDT, annual training (AT), IDT, membership points, and for other activities specified in this regulation. The following types of IDT are in accordance with AR 140–1: * regularly scheduled unit training assembly include battle assemblies (BA) formally known as unit training assemblies * re-scheduled training (RST) * make-up assemblies for missed BA due to AT * equivalent training (ET) in lieu of scheduled BA or RST * additional training assemblies (ATA) * two-hour funeral honor IDT * training of individual Soldiers in non-pay status. 7. Title 10 USC, section 12731a (Temporary Special Retirement Qualification Authority) states during the period described in subsection (b) (23 October 1992 – 31 December 2001), determine to treat a member of the Selected Reserve of a Reserve Component of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) (upon request of the member submitted to the Secretary, transfer the member to the Retired Reserve) of that section and provide the member with the notification required, if the member — as of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title. 8. AR 135-180 (Qualifying Service for Retired Pay Non-Regular Service), states in paragraph 2-1, to be eligible for retired pay, an individual need not have a military status at the time of application, but must have: * attained age 60 * a minimum of 20 years of qualifying service computed under Title 10, USC, section 12732; or; * 15 years of qualifying service, and less than 20, computed under Title 10, USC, section 12732, if the individual is to be separated because the Soldier has been determined unfit for continued Selected Reserve service //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005773 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1