RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 01 May 2008 DOCKET NUMBER: AR20070006026 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Director Analyst The following members, a quorum, were present: M Chairperson M Member M Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that: a. item 12a (Date Entered Active Duty [AD] This Period), item 12c (Net Active Service This Period), item 12d (Total Prior Active Service), and item 12f (Foreign Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of his retirement on 20 April 1997 (which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings) be corrected; b. his retirement pay be calculated using "Method A" instead of "Method B"; c. his disability rating be changed from 20 percent to 100 percent; and d. the entry "Member of an Armed Force on 24 Sep 75: Yes" on his retirement orders be changed to "Member of an Armed Force on 29 Jun 74: Yes." 2. The applicant essentially states that on his DD Form 214, items 12a, 12c, 12d, and 12f do not contain accurate information. He also states, in effect, that his retirement orders show his disability percentage as 20 percent, and that his retirement pay was calculated at 56.88 percent using "Method B," but that it should have been calculated at 75 percent disability using "Method A." He further states that he is enclosing documents showing that he should have been rated at 100 percent disabled because the medical evaluation at the time of his discharge showed him with a diagnosis of chronic lymphocytic leukemia, and was referred to a Physisal (sic) Evaluation Board (PEB) for separation due to an active malignancy. He continued by essentially stating that on his retirement orders where it states "Member of an Armed Force on 24 Sep 75: Yes," it should state 29 June 1974 instead of 24 September 1975. 3. The applicant provides a letter of commendation, dated 3 September 1975, with a 1st endorsement, dated 20 November 1975; a Certificate of Achievement for the period 17 November 1974 to 18 December 1975; his DD Form 214 (Report of Separation from Active Duty) for his active duty service in the Regular Army from 29 June 1974 through 27 July 1976; his Honorable Discharge Certificate, dated 27 July 1976; orders, dated 28 July 1976, which discharged him from the Regular Army on 27 July 1976 and assigned him to a unit at Fort Benning, Georgia after he reenlisted on 28 July 1976 for 4 years; orders, dated 21 January 1997, retiring him for permanent physical disability on 20 April 1997; his DD Form 214; DA Form 2-1 (Personnel Qualification Record – Part II); some of the correspondence, some of which is not complete, related to his Medical Evaluation Board (MEB) and PEB proceedings; a Summary of Retired Pay Account, dated 15 May 1997, from the Defense Finance and Accounting Service (DFAS); and a letter, dated 11 February 2005, from the Department of Veterans Affairs (DVA) in support of this application. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's military record shows that he enlisted in the Regular Army on 29 June 1974, and that he continuously served on active duty until he was honorably retired on 20 April 1997 due to permanent physical disability. 3. The applicant essentially stated that item 12a of his DD Form 214 is incorrect. Item 12a shows that he entered active duty on 28 July 1976. It was noted that the applicant originally entered active duty on 29 June 1974; however, his active duty service in the Regular Army from 29 June 1974 through 27 July 1976 was covered by a previously issued DD Form 214. 4. The applicant also stated that item 12c of his DD Form 214 is incorrect. Item 12c essentially shows that he served 20 years, 8 months, and 23 days of active duty service from 28 July 1976 through 20 April 1997. It was noted that the applicant, throughout his military career, served 22 years, 9 months, and 22 days; however, 2 years and 29 days of his active duty service was covered by a previously issued DD Form 214. 5. The applicant further stated that item 12d of his DD Form 214 is incorrect. Item 12d of his DD Form 214 essentially shows that he had 2 years and 29 days of total prior active service, and this is the exact amount of prior active service covered by a previously issued DD Form 214. 6. Additionally, the applicant stated that item 12f of his DD Form 214 is incorrect. Item 12f of his DD Form 214 essentially shows that he had a total of 4 years, 11 months, and 25 days of foreign service. Item 5 (Overseas Service) of the applicant's DA Form 2-1 clearly shows that he served in Korea from 19 November 1974 through 6 December 1975 [1 year and 8 days]; Germany from 6 October 1978 through 1 October 1980 [1 year, 11 months, and 26 days]; Germany from 15 November 1982 through 8 November 1984 [1 year, 11 months, and 24 days]; and Korea from 9 May 1990 through 13 May 1991 [1 year and 5 days], for a total of 6 years and 3 days of foreign service. However, the amount of foreign service shown on his DD Form 214 of 4 years, 11 months, and 25 days, which is the total amount of his last three overseas tours, accurately reflects only the foreign service the applicant completed during the period covered by this DD Form 214. 7. The applicant requested that his retirement pay be calculated using "Method A" instead of "Method B," and essentially stated that his retirement pay was calculated at 56.88 percent using "Method B," but that it should have been calculated at 75 percent disability using "Method A." However, on 15 May 1997, the DFAS - Cleveland Center provided the applicant a summary of his retired pay account. It indicated that under the provisions of Title 10 of the United States Code, Section 1401 (10 USC 1401) the applicant was eligible to receive retired pay under one of two formulas. The first method used the percentage of disability as the percentage multiplier and the second method used years of service as the percentage multiplier. DFAS informed the applicant that his retired pay account had been established at the gross monthly rate which afforded him the greatest amount (most beneficial formula). Historically, the DFAS advised retirees that they are not required to make an election of retired pay computation if they wished to receive the most beneficial rate determined by the DFAS. They were also further advised that if they did not respond within 45 days, it would be viewed as an affirmation election to accept the rate at which their account was established. 8. The applicant also requested that his disability rating be changed from 20 percent to 100 percent, and stated that he should have been rated at 100 percent disabled because the medical evaluation at the time of his discharge showed him with a diagnosis of chronic lymphocytic leukemia. However, the narrative summary based on a physical examination performed on 13 February 1996 essentially showed that the applicant was diagnosed with chronic lymphocytic leukemia, but that no therapy was recommended, and that the applicant had been maintained on clinical observation since the diagnosis. It was also determined that in the 2 years since his diagnosis he had no new problems, that he had been able to maintain normal function in his military occupational specialty (MOS) during that period of time, and that he had been on no therapy. However, because of his malignancy of lymphoid tissue, he was referred to a PEB for determination of fitness for duty in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 9. On 18 March 1996, an MEB referred the applicant to a PEB for chronic lymphocytic leukemia/small cell lymphocytic lymphoma, stage II, degenerative arthritis of his right knee, chronic right elbow bursitis, and a history of rheumatic fever. The DA Form 3947 (Medical Evaluation Board Proceedings) shows that the applicant did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The MEB findings and recommendations were approved on 19 March 1996, and the applicant concurred with the MEB's findings and recommendations on 22 March 1996. 10. On 20 December 1996, an informal PEB found the applicant physically unfit due to degenerative arthritis in both knees, and recommended that the be retired due to permanent physical disability with a 20 percent disability rating. The PEB also determined that the applicant's chronic lymphocytic leukemia/small cell lymphocytic lymphoma, stage II; chronic right elbow bursitis; and history of rheumatic fever were not unfitting, and were not ratable. On 30 December 1996, the applicant concurred with the findings and recommendations of the informal PEB, and waived a formal hearing of his case. 11. Item 14 (Counselor's Statement) of the DA Form 199 (Physical Evaluation Board [PEB] Proceedings) essentially shows that the applicant's alternate PEB Liaison Officer (PEBLO) acknowledged on 30 December 1996 that she informed the applicant of the findings and recommendations of the PEB, explained to him the results of the findings and recommendation, and his legal rights thereto. She also essentially certified that the applicant made the election mentioned in the previous paragraph. 12. The applicant's record contains a DA Form 5893-R (PEBLO Counseling Checklist/Statement), which essentially shows that the applicant was fully counseled throughout all phases of his disability evaluation. 13. On 20 April 1997, the applicant was honorably retired from the Regular Army due to permanent physical disability. 14. The applicant further requested that the entry "Member of an Armed Force on 24 Sep 75: Yes" on his retirement orders be changed to "Member of an Armed Force on 29 Jun 74: Yes." However, Army Regulation 600-8-105 (Military Orders) provides, in pertinent part, that for permanent disability retirement orders (format 612), an entry of "Member of an Armed Force on 24 Sep 75:" will be answered "Yes" or "No." The fact that the applicant entered active duty on 29 Jun 1974 was noted. 15. During the processing of this case, an advisory opinion was obtained from the United States Army Physical Disability Agency. That office essentially recommended that the applicant's request that his 1997 PEB findings be changed to reflect a finding of unfit for his diagnosis of asymptomatic cervical lymphadenopathy and be rated at 100 percent be denied. This recommendation was based on the fact that the applicant's PEB, after fully considering this condition at the time, did not find the condition to be independently unfitting, and that his MEB clearly indicated that he had no symptoms from the condition. He was also not undergoing any treatment for the condition during the 2 years before his PEB, and there had been no problems related to this condition. He was also able to adequately perform in his MOS during this period. That office also stated that based on all of the above, the PEB properly found the applicant fit for duty for this condition, and that the applicant concurred in those findings and waived his right to a formal hearing. That office also stated that the applicant provided no evidence of any errors in his PEB findings. 16. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. Through a legal assistance attorney, the applicant responded by essentially stating that he was not given the proper procedural protections at the time, and requests reconsideration of his disability rating. He also requested a clear statement that he served prior to 24 September 1975, which removes his retirement pay from tax liability. 17. The applicant's rebuttal also stated that the advisory opinion stated that he concurred with the PEB and waived his right to a formal hearing, but that he does not recall a briefing as to his rights, nor does he remember waiving them, and had not found the documentation indicating such. He also stated that the copy of the MEB dated 18 March 1996 was not signed by him, and that he was never given the opportunity to consult counsel regarding the PEB results. He further stated that it was not until recently that he discovered that his disability processing appears flawed. 18. The applicant's rebuttal also indicated that the determination that his cancer was "not ratable" by the PEB appears peculiar, since the MEB referring him to the PEB stated "Army Regulation 40-501, Chapter 3, Paragraph 3-43," and that traditionally, this reference informs the PEB of the condition rendering the Soldier unfit for further military service. He also stated that paragraph 3-43 of the 30 August 2005 edition of Army Regulation 40-501 refers to "Neoplastic Conditions," and states "The causes for referral to an MEB are neoplastic conditions of the lymphoid and blood-forming tissues." He continued by stating that the process today is different from that of 10 years ago, but it still appears the his board evaluations are inconsistent, as the MEB stated that his Neoplastic condition may render him unfit, but the PEB deemed the same condition "not ratable." He also stated, in pertinent part, that he did not receive proper counsel to inform him of his rights and the process. Regarding the taxation of his retirement income, he referred to the documents provided with his DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) which clearly indicated that he was serving prior to 24 September 1975. 19. Army Regulation 635-5 (Separation Documents) provides, in pertinent part, instructions for entering information on the DD Form 214. It provides that: a. for item 12a, enter the beginning date of the continuous period of [active duty] for issuance of this DD Form 214, for which a DD Form 214 was not previously issued; b. for item 12c, enter the amount of service this period, computed by subtracting item 12a from 12b; c. for item 12d, from previously issued DD Forms 214, enter total amount of prior active military service less lost time, if any; and d. for item 12f, enter the total amount of foreign service completed during the period covered in block 12c. 20. Information from the DFAS website provides, in pertinent part, that if a service member has been found to be physically unfit for further military service and meets certain standards specified by law, they will be granted a disability retirement. The amount of disability retired pay is determined by one of two methods: a. the first method is to multiply base pay or average of highest 36 months of active duty pay at the time of retirement, by the percentage of disability which has been assigned. Members who entered the service on 8 September 1980 or later must use the highest average formula. The maximum percentage for any type of retirement is 75 percent. This computation is sometimes referred to as "Method A"; or b. the second method is to multiply only years of active service at the time of retirement by two and a half percent by base pay or average of highest 36 months of active duty pay at the time of retirement. This computation is sometimes referred to as "Method B." 21. Disability retirement payments are taxable for those members with either total military service after 24 September 1975 or who were in the service before this date but were not on active military service or under binding written commitment to become a member of the armed services on 24 September 1975. Disability retirement payments are nontaxable for those members with total military service before 24 September 1975, members who were on active military duty or under binding written commitment to a member of the armed services on 24 September 1975, or members whose disability retirement has been deemed as combat-related, regardless of their active military service. If a retirement calculation is based on "Method A," only that portion of pay which would have been received under the actual percentage of disability calculation is non-taxable. 22. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. 23. Paragraph 3-11 of this same regulation provides that a Soldier or his or her representative will not be permitted to appear before the informal PEB. 24. Paragraph 3-8 of this same regulation also provides that the appointed PEBLO at the medical treatment facility (MTF) is responsible for counseling Soldiers (or the next of kin or legal guardian in appropriate cases) concerning their rights and privileges at each step in disability evaluation, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished. For this purpose, the MTF commander will name an experienced, qualified officer, noncommissioned officer (NCO), or civilian employee as the PEBLO. PEBLOs will counsel Soldiers and this counseling will cover, as a minimum, legal rights (including the sequence of and the nature of disability processing), the effects and recommendations of MEB and PEB findings, estimated disability retired or severance pay (after receipt of PEB findings and recommendation), probable grade upon retirement, potential veteran's benefits, recourse to and preparation of rebuttals to PEB findings and recommendation, Disabled Veterans Outreach Program, post-retirement insurance programs, and the Survivor Benefit Plan. This paragraph also emphasizes that counseling by the appointed legal counsel is only provided when the Soldier requests a formal hearing. 25. Paragraph 4-17 of this same regulation further provides regulatory guidance for counsel during PEBs. It provides that an Army attorney will be appointed as counsel to represent Soldiers at formal (emphasis added) PEB hearings. The attorney will not be a voting member of the PEB or an advisor to the PEB, but will represent the Soldier as required when the Soldier requests a formal hearing. The attorney will counsel the Soldier until formal disability proceedings are completed. The appointed counsel may also advise PEBLOs of MTFs that refer cases to the PEB. 26. Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions. Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 27. Army Regulation 600-8-105 provides, in pertinent part, that for permanent disability retirement orders (format 612), an entry of "Member of an Armed Force on 24 Sep 75:" will be answered "Yes" or "No." 28. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that: a. item 12a, item 12c, item 12d, and item 12f of his DD Form 214 should be corrected; b. his retirement pay should be calculated using "Method A" instead of "Method B;" c. his disability rating should be changed from 20 percent to 100 percent; and d. the entry "Member of an Armed Force on 24 Sep 75: Yes" on his retirement orders should be changed to "Member of an Armed Force on 29 Jun 74: Yes." 2. While the applicant originally entered active duty on 29 June 1974, his active duty service in the Regular Army from 29 June 1974 through 27 July 1976 was covered by a previously issued DD Form 214. As a result, item 12a of his DD Form 214 correctly reflects his first day of active duty not previously covered by a DD Form 214. Therefore, there is no basis for correcting item 12a of his DD Form 214. 3. While the applicant served a total of 22 years, 9 months, and 22 days of active duty service, 2 years and 29 days of his active duty service was covered by a previously issued DD Form 214. As a result, item 12c of his DD Form 214 correctly reflects the amount of the applicant's active duty service not previously covered by a DD Form 214. Therefore, there is no basis for correcting item 12c of his DD Form 214. 4. As item 12d of the applicant's DD Form 214 accurately shows that he had 2 years and 29 days of total prior active service, it is unclear why the applicant believes this entry is incorrect. However, as the applicant did not provide any evidence proving that this entry is in error, there is no basis for correcting item 12d of his DD Form 214. 5. While the applicant served a total of 6 years and 3 days of foreign service, 1 year and 8 days of his foreign service was performed outside the period covered by his DD Form 214, and that foreign service was documented in a previously issued DD Form 214. As item 12f accurately reflects the 4 years, 11 months, and 25 days of foreign service that he performed during the period covered by his DD Form 214, there is no basis for correcting this item. 6. Although the applicant requested that his retirement pay be calculated using "Method A" instead of "Method B," the summary of his retired pay account clearly shows that the DFAS's calculation using "Method B" is the most beneficial to him. It appears that the applicant mistakenly believes that he is entitled to a percentage multiplier of 75 percent; however, he is not. 75 percent is the maximum percentage multiplier under any of the pay computation formulas, but it is not one of the two percentage multipliers the applicant's retirement pay has or will be based on. It is recommended that the applicant contact the DFAS for clarification on his retired pay if he has any questions and, as a result, there is no basis for granting relief to this portion of the applicant's request. 7. While the Board does not doubt the sincerity of the applicant's contention that his Army disability rating should be changed from 20 percent to 100 percent, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence to prove that the informal PEB findings and recommendations are in error or unjust. The fact that the DVA ultimately granted him a 100 percent disability rating for chronic lymphocytic leukemia was noted. However, as previously mentioned, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given. The DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions. Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. The evidence of record clearly shows that his chronic lymphocytic leukemia was not independently unfitting, and his MEB clearly indicated that he had no symptoms from the condition. He was also not undergoing any treatment for the condition during the 2 years before his PEB, and he had no problems related to this condition. He was also able to adequately perform in his MOS during this period. 8. The fact that the applicant provided only partial records of his MEB and PEB was noted, as were his contentions that he was not given the proper procedural protections at the time, that his MEB paperwork was not signed by him, and that he was never given the opportunity to consult counsel regarding the PEB results. However, the evidence of record clearly shows that the applicant was fully counseled by his PEBLO in accordance with governing regulations. Additionally, the MEB paperwork in his military record distinctly shows that not only did the applicant sign his MEB paperwork, he concurred with the findings and recommendation of the MEB. Regarding his statement that he was never given the opportunity to consult counsel regarding the informal PEB results, by regulation, the applicant was not entitled to regularly appointed counsel unless he demanded a formal hearing, which he did not. In view of the foregoing, there is no basis for changing his disability rating from 20 percent to 100 percent. 9. The fact that the applicant originally entered active duty on 29 June 1974 is not in question. However, it appears that the applicant misconstrued the entry "Member of an Armed Force on 24 Sep 75: Yes" to imply that this was the date he initially entered active duty. However, this is not the case, as this is merely a mandatory and standardized entry on all format 612 permanent disability retirement orders. As a result, there is no basis for changing this entry on his retirement orders. 10. 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. In view of the foregoing, there is no basis for granting relief to the applicant in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __XXX __ __XXX__ __XXX__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States. The applicant and all Americans should be justifiably proud of his service in arms. ___ XXX ___ CHAIRPERSON ABCMR Record of Proceedings (cont) AR20070006026 13 DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 1901 SOUTH BELL STREET, 2ND FLOOR ARLINGTON, VA 22202-4508