RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 April 2004
      DOCKET NUMBER:   AR2003088381


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 that his separation for disability with
severance pay be voided and that he be granted a disability retirement.

2.  The applicant states in a 3 March 2003 letter to the Board that a
medical misdiagnosis resulted in his separation by reason of physical
disability rather than his being afforded an early retirement for physical
disability.  He states that this constitutes error and injustice.

3.  The applicant states that he was involved in a vehicle accident in 1990
and suffered a "T-5 spinous process fracture and bilateral shoulder
impingements."  He experienced back pain, numbness in his arms and hands,
and shoulder pain. In 1991, he underwent a Mumford procedure on his right
shoulder that provided relief for the shoulder pain, but did nothing for
his back pain or numbness in his extremities.  In 1997, he underwent
medical evaluation processing in Wurzburg, Germany, which resulted in his
being separated by reason of physical disability with disability severance
pay.

4.  The applicant states that he sought to obtain an early 15-year
retirement, but was told by Department of the Army that he could not do
this since he was already involved in the medical evaluation process.

5.  The applicant adds that the Department of Veterans Affairs (VA) has
granted him a 20 percent service-connected disability, but has done little
to resolve his medical problems.  A civilian doctor found that the numbness
in his hands was the result of carpal tunnel syndrome and had nothing to do
with his spinal fracture or shoulder impingements.  He adds that, had the
Army properly evaluated his condition, he would not have been given
disability separation and would have been allowed to serve to retirement.

6.  The applicant provides, in support of his request, three medical
diagnoses, dated 15 November 2002, 19 February and 14 March 2003, which
indicate tests show carpal tunnel syndrome is responsible for the numbness
in his hands.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or injustice which
occurred on 3 February 1998.  The application submitted in this case is
dated 3 March 2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 8 October 1986, the applicant enlisted in the Regular Army and
served continuously until separated on 3 February 1998 with an honorable
discharge by reason of "disability, severance pay."  He served in military
occupational specialty (MOS) 67R, AH-64 Attack Helicopter Repairer.  The
highest rank he achieved was SFC on 3 July 1996.  This was the rank he held
at the time he was discharged.

4.  On 15 December 1997, the applicant underwent a Physical Evaluation
Board (PEB).  It found that he suffered from "upper thoracic back pain
secondary to a motor vehicle accident with normal radiographics and bone
scan."  The condition was found to be unfitting and was rated at 10 percent
disabling.  The PEB recommended separation with severance pay.  On 23
December 1997, the applicant concurred in the finding and recommendation of
the PEB.  There is no evidence that he requested a 15-year retirement.

5.  On 3 February 1998, the applicant was honorably discharged by reason of
disability and was afforded severance pay of $40,475.22.  He had completed
a total of 15 years, 1 month, and 17 days of active military service.

6.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his or her office, rank, grade or rating because of
disability incurred while entitled to basic pay.

7.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of active
service or a disability rated at least 30 percent.  Section 1203, provides
for the physical disability separation of a member who has less than 20
years active service and a disability rated at less than 30 percent.

8.  Public Law 102-484, National Defense Authorization Act for Fiscal Year
(FY) 1993, provided the Secretary of Defense a temporary additional force
management tool with which to effect the drawdown of military forces.
Subsection 4403(f) of the Act directed the use of the Temporary Early
Retirement
Authority (TERA) Program.  The National Defense Authorization Act for 1994,
Public Law 103-160, extended the use of the TERA Program through the end of
FY 1999.  TERA allowed the Army to offer early retirement to certain
Soldiers who had at least 15, but not yet 20, years of service.  Early
retirement is not an entitlement, and the Army offered it only to selected
Soldiers in excess grades and skills.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 shows he was discharged under the
provisions of Army Regulation 635-40, for disability with severance pay.
He underwent physical evaluation processing and was informed of the PEB's
findings and recommendation, and of his rights.  He concurred with the
board's findings and recommendation.

2.  The applicant had a medically unfitting condition at the time of
separation that was rated at 10 percent, thus did not require processing
for physical disability retirement.  The medical information provided by
the applicant does not show or demonstrate that he was improperly diagnosed
or separated.

3.  There is no evidence in the applicant's records, nor has he provided
any, to show that he applied for, or was offered retirement under the TERA
Program.  In any event, early retirement is not an entitlement; it was
offered to select Soldiers in excess grades and skills and was not
available to all Soldiers.

4.  Eligibility for veterans' benefits does not fall within the purview of
the Army Board for Correction of Military Records.  The applicant should
contact the VA with any concerns about the benefits that he is receiving.

5.  The available records show the applicant should have discovered the
error or injustice now under consideration on 3 February 1998; therefore,
the time for the applicant to file a request for correction of any error or
injustice expired on 2 February 2001.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __gjw___  __wdp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented and the merits of this case are
insufficient to warrant the relief requested, and therefore, it would not
be in the interest of justice to excuse the applicant's failure to timely
file this application within the 3-year statute of limitations prescribed
by law and his application is denied for this reason.



                 Raymond J. Wagner
            ______________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2003088381                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040408                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19980203                                |
|DISCHARGE AUTHORITY     |AR635-40                                |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |110.0200                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |