| Mr. Carl W. S. Chun | Director | |
| Ms. Nancy L. Amos | Analyst |
| Ms. Jennifer L. Prater | Chairperson | ||
| Mr. Melvin H. Meyer | Member | ||
| Mr. James E. Anderholm | Member |
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
| 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. |
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