RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 JANUARY 2005
      DOCKET NUMBER:  AR2004106023


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Walter Morrison               |     |Chairperson          |
|     |Ms. Eloise Prendergast            |     |Member               |
|     |Ms. Jeanette McCants              |     |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 his separation document be
corrected to show that his retirement date from active service, by reason
of physical disability, was 4 June 1993 vice 6 January 1992.

2.  The applicant states, in effect, that he was initially placed on the
Temporary Disability Retired List (TDRL) and subsequently called to Fort
Knox, Kentucky and “put on full retirement.”  He maintains that by changing
his retirement date to the date his name was removed from the TDRL and
permanently retired would give him a full 20 years of active Federal
service and he would then be entitled to “concurrent pay” because he is
currently rated as 100 percent disabled by the Department of Veterans
Affairs.

3.  The applicant provides a copy of his 1992 separation document, copies
of orders placing his name on the TDRL, copies of orders permanently
retiring him, and a copy of a retiree pay statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 January 1992.  The application submitted in this case
is dated
3 March 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 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.  Records available to the Board indicate that the applicant entered
active duty on 25 February 1972 and served through a series of reenlistment
actions.  He was promoted to pay grade E-7 in August 1985.  He would have
fulfilled service requirements for a 20-year regular retirement on 24
February 1992.

4.  On 27 August 1991 the applicant underwent a physical evaluation at
Walter Reed Army Medical Center as part of a Medical Evaluation Board
(MEB).  His chief complaint was “polysymptomatic ‘spells’ of 2½ years
duration with subsequent social constriction, occupational dysfunction, and
impairment in self esteem and mood.”  The examination noted that the
applicant had initially been referred to Psychiatry in July 1990 following
extensive workup by Neurology and Endocrinology.  The evaluation noted that
the applicant suffered from episodes of sudden onset of diffuse weakness,
confusion, the feeling of falling to the left, diaphoresis, tremulousness,
stomach upset, and intense fear of losing control.  He occasionally had
chest tightness and palpitation and frequently sought medical attention.
It also noted that he spent more and more time in bed to avoid the
embarrassment of being seen during these spells in public and less and less
time with his girlfriend or hobbies and was avoiding public events in order
to avoid embarrassment.  He described his depressed mood and a 20-pound
weight loss.  Ultimately a diagnosis of panic disorder with agoraphobia and
alcohol dependence in remission was made and he was referred to a Physical
Evaluation Board (PEB).  The MEB noted in their summation that the
applicant had over 19 years of military service at the time he underwent
the physical evaluation and MEB.  The applicant concurred with the findings
and recommendation of the MEB.

5.  An informal PEB, conducted on 31 October 1991, concluded that the
applicant’s severe panic disorder prevented satisfactory performance of
duty in his grade and specialty but that the condition had not stabilized
to the point that a permanent degree of severity could be determined for
rating purposes.  The PEB recommended that the applicant’s name be placed
on the TDRL with a 50 percent disability rating and reevaluated in April
1993.  The applicant concurred with the findings and recommendation of the
PEB and waived his right to a formal hearing.  In accepting the findings
and recommendation of the informal PEB he noted that he had “received a
full explanation of the results of the findings and recommendations and
legal rights pertaining thereto.”

6.  The applicant was retired on 6 January 1992 and his name placed on the
TDRL the following day.  He was issued a Department of Defense Form 214
(Certificate of Release or Discharge from Active Duty) which showed he had
19 years, 10 months, and 9 days of active Federal service.

7.  In March 1993 the applicant underwent a TDRL evaluation at Fort Knox,
Kentucky.  At that time it was determined that his severe panic disorder
with severe agoraphobia had stabilized to the point that a permanent rating
could be established.  An informal PEB, conducted on 30 April 1993,
concluded that the applicant’s condition was chronic and that he remained
unfit for continued service.  The PEB recommended that he be permanently
retired with a 50 percent disability rating.  The applicant again concurred
with the findings and recommendation of the PEB and waived his right to a
formal hearing.

8.  Army Regulation 635-40 and the Department of Defense Financial
Management Regulation note that a Soldier is eligible for disability
retired pay if he has a rating of less than 30 percent and has 20 years of
active service for retirement or if he or she has a disability rating of 30
percent or higher.  The percentage multiplier is either the total
disability percentage rating or 2.5 percent of the total years of service
(including any fraction thereof, that is, 7 months equals 7/12 and
disregard any fraction of a month).  Use the higher percentage of the two,
but not more than 75 percent, as a multiplier of the retired pay base to
arrive at the retired pay entitlement.  For Soldiers who first became
members of the Armed Forces before 7 September 1980, retired pay base is
computed on the highest grade “satisfactorily” held or current grade.

9.  Until recently, Title 38 United States Code, stated that any person
entitled to receive retirement pay based on service could not receive such
pay concurrently with benefits payable under laws administered by the
Department of Veterans Affairs.  However, Public Law 108-136, the National
Defense Authorization Act for Fiscal Year 2004, contained a provision to
restore the retired pay currently deducted from retirees’ accounts to their
receipt of Department of Veterans Affair (VA) compensation.  This
restoration of retired pay is known as Concurrent Disability Pay.  It is
applicable to all retirees who have a VA-rated, service-connected
disability of 50 percent or higher with the exception of disability
retirees with less than 20 years of service.  The phased-in restoration
began on
1 January 2004 and will increase each year until January 2014 when eligible
members will receive their full retired pay entitlement and their VA
disability compensation with no reduction.

10.  There were no documents available to the Board regarding receipt of VA
disability by the applicant.

11.  Army Regulation 635-40 states that certain Soldiers who are eligible
for retirement or separation because of physical disability may be
continued on active duty.  It notes that the primary objective of this
program is to conserve manpower by effective use of needed skills or
experience.  A Soldier who is physically unqualified for further active
duty has no inherent or vested right to be continued on active duty.  To be
considered for continued active duty a Soldier must be found unfit, capable
of maintaining one’s self in a normal military environment without
adversely affecting one’s health and the health of others and without undue
loss of time from duty for medical treatment, physically capable of
performing useful duty in a specialty for which he or she is currently
qualified or potentially trainable.

12.  Army Regulation 635-5, which established the policy and procedures for
the preparation and distribution of Department of Defense Forms 214 notes
that the form is issued to capture information associated with an
individual’s period of active Federal service and are issued only when an
individual is released, or discharged from active duty.  An individual
whose name is placed on the TDRL are issued a Department of Defense Form
214 reflecting completion of their active Federal service period by reason
of physical disability.  An individual does not accrue any additional
active duty service credit while on the TDRL and as such, a new Department
of Defense Form 214 is not issued once final disposition is made.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from active duty and his name placed on
the TDRL on 6 January 1992, hence he was issued a Department of Defense
Form 214 at that time.  Although his name was subsequently removed from the
TDRL in 1993 there was no additional active service and as such no basis to
issue another Department of Defense Form 214, or to amend his original
separation document to indicate his final disposition.

2.  At the time the applicant’s name was placed on the TDRL, financially he
would have received nearly identical amounts of retired pay, whether in the
form of disability retired pay or regular retired pay, had he remained on
active duty the additional 18 days necessary to reach 20 years of
qualifying service for regular retirement purposes.  In any case he would
have been required to waive his “military” retired pay in order to receive
disability payments from the Department of Veterans Affairs, which are
often higher than the “military” payments and are not taxed.

3.  It is possible that with the recent change in legislation that the
applicant would now be financially better off had he been retained on
active duty until he reached 20 years of service and that is apparently
what prompted him to submit his request to this Board.  However, that
change does not establish any error or injustice in the applicant’s
disability processing, and is not evidence that even if he had requested
retention for the additional days required to reach 20 years of active
Federal service that, given the debilitating nature of his condition, that
such a request would have been approved knowing that at the time he would
have been little additional financial benefit.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 January 1992; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
5 January 1995.  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

___WM__  ___EP __  ___JM __  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.




                                  _____Walter Morrison_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106023                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050113                                |
|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.       |110.00                                  |
|2.                      |136.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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