APPLICANT REQUESTS: Correction of his military records to reflect disability retirement versus disability separation. In support of his request he provides a copy of his DD Form 214 indicating he was separated for disability with severance pay and a copy of a 10 September 1985 Physical Evaluation Board (PEB) proceedings indicating that he was unfit for military service with a disability rating of
40 percent.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: Several attempt to secure copies of the applicant service personnel and medical records were unsuccessful. Information contained here in was reconstructed solely from documents contain in the applicants VA records, which included copies of documents associated with his 1985 disability processing.
The applicant was a member of the USAR on active duty as part of the Active Guard Reserve (AGR) when a Medical Evaluation Board (MEB), conducted in August 1985, noted the applicant's chief complaint as "low back pain and referred the applicant to a PEB.
An informal PEB, conducted on 10 September 1985 concluded the applicant was physically unfit for continued service because of his back condition and rated his disability at 40 percent. The applicant nonconcurred with the findings and submitted an appeal noting that he was a dedicated person to the military [and] would appreciate it if the military would review [his] position with a closer look for a higher percentage.
On 26 November 1985 the PEB reconsidered the applicants case and noted that originally [the] soldier was given benefit of doubt. The case was reevaluated based upon guidance provided by the Chairman of the DRC [District Recruiting Command] subsequent to the board findings. It found that the absence of objective findings indicates need for revision of the rating to moderate impairment.... The PEB concluded the applicant was unfit for further military service, rated his disability at 20 percent and recommended separation with severance pay. The Boards recommendation was approved on behalf of the Secretary of the Army on 17 December 1985 and the applicant was separated from active duty effective 13 May 1986. He received $46,275.60 in disability separation pay.
Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
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.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 May 1986. The time for the applicant to file a request for correction of any error or injustice expired on 13 May 1989.
The application is dated 27 February 1994 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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