RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 JUNE 2005
      DOCKET NUMBER:  AR20040004942


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Kenneth Lapin                 |     |Member               |
|     |Ms. Delia Trimble                 |     |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 physical disability retirement.

2.  The applicant states that when she retired it was for medical reasons.
The board [Physical Evaluation Board] stated that she was not fit for duty.
 She could still do her job, but could not do physical training.  She was
told by people at her old unit that she would receive a medical retirement.

3.  The applicant provides a copy of the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 April 2001.  The application submitted in this case is
dated        28 June 2004.

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 limitations 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.  The applicant enlisted in the Army Reserve for 6 years on 18 October
1979.  She continued her service in the Army Reserve, reenlisting for the
last time for    6 years on 11 March 1999.  She was trained as a food
service specialist, having completed active duty for training on 18 April
1980.

4.  On 5 August 1996 the applicant was treated as an outpatient because of
an injury to her left shoulder that she sustained at Fort Dix, New Jersey
during active duty for training from 13 July 1996 to 26 July 1996.  The
date of her injury cannot be determined from the evidence submitted.  Her
injury was determined to be in line of duty.

5.  The applicant’s Noncommissioned Officer Evaluation Report (NCOER) for
the period September 1997 to March 1998 shows that she failed the sit-up
and          2-mile run portions of the Army Physical Fitness Test (APFT),
but that her rating officials considered her fully capable of performing
her duties.

6.  On 26 January 1999 the applicant received a permanent profile because
of left shoulder pain.

7.  Her NCOER for the period April 1998 to March 1999 indicates that she
had a profile, but that it did not interfere with her job performance.  The
two succeeding reports, both for one-year periods also indicates that her
profile did not interfere with her job performance.  Her rating officials
considered her a fully capable NCO.  Her last report, April 2000 through
March 2001, shows that she was a food service sergeant with the 1019th
Quartermaster Company, a Reserve unit in Mattydale, New York.  That report
indicated that she was undergoing a Medical Evaluation Board, but that her
profile did not affect her job performance.  She received the highest
ratings possible from her senior rater.

8.  On 5 April 2000 a Medical Evaluation Board diagnosed her condition as
chronic left shoulder pain and recommended that she be referred to a
Physical Evaluation Board (PEB).  The applicant concurred.

9.  On 18 April 2000 a PEB determined that she was physically unfit because
of her left shoulder pain and recommended that she be separated from the
Army with severance pay with a 20 percent disability rating.  The second
page of the PEB proceedings is not available; consequently, it cannot be
determined whether or not the applicant concurred with the results of the
proceedings.

10.  The applicant did, however, on 10 August 2000 submit a personal action
request, electing early eligibility retirement/disability, stating, “I have
at least      15 years but less than 20 years of qualifying service for non-
regular retired pay.   I understand that I am subject to involuntary
separation from the Selected Reserve solely because I am unfit due to a
medical disability.  I have the opportunity to elect early qualification
for retired pay at age 60 provided that         I elect transfer to the
Retired Reserve.”

11.  On 16 April 2001 the applicant transferred to the Retired Reserve.
The orders effecting her transfer show that it was a voluntary
reassignment.

12.  The applicant was examined by orthopedics at the Syracuse, New York
Department of Veterans Affairs Medical Clinic on various occasions because
of her complaint of left shoulder pain.  On 27 April 2004 she was diagnosed
with left shoulder impingement and joint arthralgia, and scheduled for an
arthroscopic left shoulder distal clavicle excision, decompression and
subacromial debridement.

13.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant performed her duties well even
after her shoulder injury in 1996.  A PEB in April 2000, however,
determined that she was physically unfit for further military service, and
in August of that year the applicant indicated her intention to transfer to
the Retired Reserve with qualification for retired pay at age 60, in lieu
of accepting severance pay.

2.  However, she continued her service in the Selected Reserve until her
voluntary transfer to the Retired Reserve in April 2001, a year after the
PEB determined that she was physically unit for military service.  Her
NCOER for the one year period ending in March 2001 indicated that she was
fully capable of performing her duties, despite her physical profile.

3.  There is no evidence and the applicant has not submitted any to show
that she was informed that she would be retired because of her physical
disability.  The PEB determined that she was physically unfit and
recommended a disability rating of 20 percent.  She has not submitted any
evidence to show that the recommended rating was erroneous or unfair.  The
evidence, in fact, indicates that she acknowledged and consented to that
rating and elected to transfer to the Retired Reserve in lieu of accepting
severance pay.

4.  The applicant’s request for physical disability retirement is not
warranted.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 April 2001; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         15 April 2004.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  ___KL  __  ___DT __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____ Raymond Wagner_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004942                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050616                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]