MEMORANDUM OF CONSIDERATION   

	IN THE CASE OF:       

	BOARD DATE:            30 JANUARY 2003                  
	DOCKET NUMBER:   AR2002078048

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Yalonda Maldonado		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 record be corrected to show that he retired from the Army with 20 years of active service. 

APPLICANT STATES:  That he was medically retired from the Army.  He wanted to stay in until September [1998];however, he was not allowed to do so.  He should be retired with 20 years of active service.  He was informed at the time of his discharge that he had 20 years of service.  He enlisted in the Army on 19 July 1978 in the delayed entry program (DEP).  He was honorably discharged under the impression that he had 20 years of service.  Had he known otherwise, he would have tried to stay on active duty until September.  He did not choose to leave; consequently he should not be denied the full benefit of 20 years of service.  He received a retirement service bulletin stating that retirees who are 60 percent disabled will receive $50.00 per month.    

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

The applicant enlisted in the Army Reserve for 6 years on 27 July 1978.  He was discharged from the Army Reserve on 19 September 1978, and enlisted in the Regular Army the following day for three years.  He remained on continuous active duty until his discharge in July 1998.

A DA Form 3349 (Physical Profile), dated 26 July 1995, indicates that the applicant’s physical profile serial was 4 3 2 1 1 1, because of diffuse joint and muscle pain (fibromyalgias).  That form indicated that a Medical Evaluation Board (MEB) had been completed and that a Physical Evaluation Board (PEB) was pending.

In 1996 the applicant voluntarily agreed to an extension of his separation date in order to complete medical evaluation proceedings.  On 2 April 1996 the applicant reenlisted in the Army for two years.

On 11 December 1996 the applicant’s physical profile serial and condition mirrored the July 1995 report.

In January 1998 the applicant agreed to an extension of his separation date of    1 April 1998 for the purpose of completion of medical treatment or physical disability processing.  The 101st Airborne Division, the applicant’s major command, approved an extension of the applicant’s separation date until          30 September 1998.    

On 24 July 1998 the applicant retired because of a permanent physical disability. The percentage of his disability was 40 percent.  He had 19 years, 10 months, and 5 days of active service, and 1 month, and 23 days of inactive service.  

The applicant’s medical evaluation board and physical evaluation board proceedings are not available. 

On 3 July 2000 the VA notified the applicant that his disability rating for gastroesophageal reflux with hiatal hernia had increased from zero percent to    10 percent.  His combined evaluation was 60 percent.  That notification provided a history of his monthly compensation, and indicated that he had waived retired pay on 1 July 2000.  

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Army Regulation 635-40 states that a soldier is eligible for disability retired pay if he has a disability rating of 30 percent or more.  The percentage multiplier is either the total disability percent rating or 2 1/2 percent of the total years of service (including any fraction thereof, that is, 7 months equals 7/12 and disregard any fraction of a month).  Use the higher percentage of the two, but not more than 75 percent, as a multiplier of the retired pay base to arrive at the retired pay entitlement.  An example:  A soldier with 19 years and 6 months of service and 30 percent or more disability is retired because of disability.  His retirement pay entitlement (19 6/12 X 2.5) is 48.7 percent of his retired pay base. If his disability rating is less than 48.7 percent, only that portion (retired pay base times the disability rating of his retired pay) may be tax free.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

The FY2000 Defense Authorization Act provided for special compensation to certain severely disabled uniformed services retirees.  Non-disability retirees with a VA service-connected total disability rating will receive $300 per month; with a 90 percent rating, $200 per month; and with a 80 or 70 percent rating, $100 per month.  To be eligible, retirees must not be retired for disability, must have 20 or more years of creditable service, and must have been rated 70 percent or more disabled by the VA within four years after the effective date of retirement and must currently have that or a higher disability rating.

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.  Absent evidence to the contrary, it is presumed that the applicant’s physical evaluation board processing and his subsequent retirement because of physical disability was in accordance with law and applicable regulations.  
2.  Notwithstanding his contention, there is no evidence, nor has he provided any, to show that he was unfairly or unjustly treated.  The fact that the law now entitles soldiers with regular retired pay and with certain disability ratings to receive a special compensation, is no reason now to correct his record to show that he had 20 years of active service for retirement purposes.  To do so would give him an unfair advantage over other veterans in a like situation as himself.   

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  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 that requirement.

5.  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

__WTM      __CJP__  ___YM___  DENY APPLICATION

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

INDEX

CASE ID	AR2002078048	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030130	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.