MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 October 2002
	DOCKET NUMBER:   AR2002076220

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his medical retirement be changed to a retirement for longevity.

APPLICANT STATES:  That he had served over 26 years on active duty and had requested retirement.  A medical examination determined he had service connected disabilities which resulted in his medical discharge.  A change in Department of Veterans Affairs (VA) regulations would entitle him to additional VA benefits if this change is made. He provides his Report of Transfer or Discharge, DD Form 214, as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records show:

After having had prior service, he enlisted in the Regular Army on 29 May 1947.  

On 18 October 1967, the applicant applied for retirement, to be effective              1 February 1968, after completing over 25 years of active duty and over 26 years of service for pay.  By message dated 11 January 1968, The Adjutant General approved his request for retirement providing he was found physically and otherwise qualified.  By message dated 18 January 1968, The Adjutant General was informed the applicant was awaiting medical evaluation by the Hearing Center, Walter Reed Hospital.  

The applicant's physical evaluation board packet is not available.  On 22 October 1968, he was permanently retired by reason of physical disability.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. 

Public Law 106-65, dated 5 October 1999, added section 1413 to Title 10, U. S. Code.  It provides special compensation (initially, $100, $200, or $300 per month if the qualifying service-connected disability is rated as 70 or 80 percent, 90 percent, or 100 percent, respectively) for certain severely disabled retirees.  An eligible member is a retired member who is not retired for disability, is in a retired status, and has 20 or more years of service for purposes of computing retired pay.  The law was later amended to provide this special compensation to delete the requirement to have not been retired for disability.  The amendment took effect on 1 October 2001 and applies to months that begin on or after that date.  No benefit may be paid under this section to any person by reason of the amendment for any period before that date.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  There is no evidence of record nor does the applicant provide any to show that his disability retirement was improper.  

3.  It is not certain what change in VA regulations the applicant is referring to but it may be Public Law 106-65.  A law providing special benefits to certain disabled members passed 30 years after the member retired for physical disability is insufficient reason to grant the relief requested.  Due to the amendment of this law, however, it appears the applicant became eligible for this special compensation effective 1 October 2001.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JLP__  ___MHM___  __JEA  __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002076220	
SUFFIX		
RECON		
DATE BOARDED	2002/10/08	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.06	
2.		
3.		
4.		
5.		
6.