It seems my PEB attorney is in a fight for several service members in the same boat as I. My 20th anniversary date is 25 August 2014. I am to be placed on TDRL 19 June. This is 67 short of 20 years. The thing I am struggling to understand is the relationship between 10 USC 1176, and 10 USC 1202. 1176 is what guarantees an active component member beyond 18 years of service the opportunity to reach 20 years. Section 1202 simply states the service Secretaries will maintain a TDRL for those with unstable conditions. 10 USC 1201 describes retirement.
The final portion of 10 USC 1176 says "unless the member is sooner retired or discharged under any other provision of law." The question I posed to the legal team was what does "any other provision of law" mean? Does 10 USC 1202 supersede this section protecting my nearly 20 years of service? Or should my retirement date be adjusted to no sooner than 25 August to maintain the integrity of 10 USC 1176? I have not received a response yet, but I have a letter drafted for my congressman to plead my case for protecting a 20 year long retirement. I'm thinking I need to mail this letter off and come from a different, more swift angle.
Army Regulation 635-40
Personnel Separations: Physical Evaluation for Retention, Retirement, or Separation
Paragraph 3–14a: Factors governing time of processing
Separation or retirement should normally occur within 20 days of the date of the final determination of unfitness by the [Secretary of the Army]. However, Soldiers are entitled to use accrued leave in excess of that which cannot be sold back to the Government. (I never sold leave as I believed selling leave was a bad idea. Now I will be forced to sell it?)
Paragraph 4–24b:Permanent retirement for physical disability(see 10 USC 1201 or 1204).
Paragraph 4–24c: Placement on the TDRL (see 10 USC 1202 or 1205).
10 USC 1176(a) Regular Members.—A regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section 3914 or 8914 of this title, or of qualifying for transfer to the Fleet Reserve or Fleet Marine Corps Reserve under section 6330 of this title, shall be retained on active duty until the member is qualified for retirement or transfer to the Fleet Reserve or Fleet Marine Corps Reserve, as the case may be, unless the member is sooner retired or discharged under any other provision of law.
10 USC 1201(b): Required Determinations of Disability – Determinations referred to in subsection (a) are determinations by the Secretary that—
(1) based upon accepted medical principles, the disability is of a permanent nature and stable;
(2) the disability is not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and
(3) either—
(A) the member has at least 20 years of service computed under section 1208 of this title; or
(B) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination; and either—
(i) the disability was not noted at the time of the member’s entrance on active duty (unless clear and unmistakable evidence demonstrates that the disability existed before the member’s entrance on active duty and was not aggravated by active military service);
(ii) the disability is the proximate result of performing active duty;
(iii) the disability was incurred in line of duty in time of war or national emergency; or
(iv) the disability was incurred in line of duty after September 14, 1978.
10 USC 1202
Upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the temporary disability retired list, with retired pay computed under section 1401 of this title.
From the Army Human Resources Command website:
Enlisted Sanctuary Program - The "Sanctuary" program as defined by Title 10 of the United States Code, is a federal program for protecting military service members from being forced to leave military service when they are close to attaining active-duty retirement eligibility.
Once a Soldier has 18 years of active military service time accrued, they are "Locked-In" and protected by the "Sanctuary" program until they reach 20 years of service and are eligible for retirement.
While "Sanctuary" protections are automatic for active duty Soldiers, reserve Soldiers on Active Duty who attain 18 years or more (but less than 20 years) of active service must forward a request to the Sanctuary Team here. Specifically claiming this sanctuary status to ensure they remain on active duty once their current tour ends. (Retrieved from: https://www.hrc.army.mil/Enlisted/Enlisted Sanctuary Program)
The final portion of 10 USC 1176 says "unless the member is sooner retired or discharged under any other provision of law." The question I posed to the legal team was what does "any other provision of law" mean? Does 10 USC 1202 supersede this section protecting my nearly 20 years of service? Or should my retirement date be adjusted to no sooner than 25 August to maintain the integrity of 10 USC 1176? I have not received a response yet, but I have a letter drafted for my congressman to plead my case for protecting a 20 year long retirement. I'm thinking I need to mail this letter off and come from a different, more swift angle.
Army Regulation 635-40
Personnel Separations: Physical Evaluation for Retention, Retirement, or Separation
Paragraph 3–14a: Factors governing time of processing
Separation or retirement should normally occur within 20 days of the date of the final determination of unfitness by the [Secretary of the Army]. However, Soldiers are entitled to use accrued leave in excess of that which cannot be sold back to the Government. (I never sold leave as I believed selling leave was a bad idea. Now I will be forced to sell it?)
Paragraph 4–24b:Permanent retirement for physical disability(see 10 USC 1201 or 1204).
Paragraph 4–24c: Placement on the TDRL (see 10 USC 1202 or 1205).
10 USC 1176(a) Regular Members.—A regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section 3914 or 8914 of this title, or of qualifying for transfer to the Fleet Reserve or Fleet Marine Corps Reserve under section 6330 of this title, shall be retained on active duty until the member is qualified for retirement or transfer to the Fleet Reserve or Fleet Marine Corps Reserve, as the case may be, unless the member is sooner retired or discharged under any other provision of law.
10 USC 1201(b): Required Determinations of Disability – Determinations referred to in subsection (a) are determinations by the Secretary that—
(1) based upon accepted medical principles, the disability is of a permanent nature and stable;
(2) the disability is not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and
(3) either—
(A) the member has at least 20 years of service computed under section 1208 of this title; or
(B) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination; and either—
(i) the disability was not noted at the time of the member’s entrance on active duty (unless clear and unmistakable evidence demonstrates that the disability existed before the member’s entrance on active duty and was not aggravated by active military service);
(ii) the disability is the proximate result of performing active duty;
(iii) the disability was incurred in line of duty in time of war or national emergency; or
(iv) the disability was incurred in line of duty after September 14, 1978.
10 USC 1202
Upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member’s name on the temporary disability retired list, with retired pay computed under section 1401 of this title.
From the Army Human Resources Command website:
Enlisted Sanctuary Program - The "Sanctuary" program as defined by Title 10 of the United States Code, is a federal program for protecting military service members from being forced to leave military service when they are close to attaining active-duty retirement eligibility.
Once a Soldier has 18 years of active military service time accrued, they are "Locked-In" and protected by the "Sanctuary" program until they reach 20 years of service and are eligible for retirement.
While "Sanctuary" protections are automatic for active duty Soldiers, reserve Soldiers on Active Duty who attain 18 years or more (but less than 20 years) of active service must forward a request to the Sanctuary Team here. Specifically claiming this sanctuary status to ensure they remain on active duty once their current tour ends. (Retrieved from: https://www.hrc.army.mil/Enlisted/Enlisted Sanctuary Program)
