RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        07 APRIL 2005
      DOCKET NUMBER:  AR20040002572


      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. James Anderholm               |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Linda Barker                  |     |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 military records be
corrected to show that he was permanently retired from the Army with a
disability rating of 30 percent.

2.  The applicant states, in effect, that his military records will show
that he was retired from the military “30% disabled.”

3.  The applicant provides a copy of his 1977 separation document and a
copy of his 1977 separation orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 October 1977.  The application submitted in this case
is dated
4 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.  Records available to the Board indicate that the applicant entered
active duty on 26 April 1976 and successfully completed basic and advanced
individual training before being assigned to an infantry unit in Panama in
October 1976.

4.  A June 1977 medical evaluation noted that the applicant had been
hospitalized in April 1977 for “suspected drug use.”  He was “found to be
normal in the hospital other than having an ‘odd affect.’”  He was
subsequently admitted to psychiatry services in May 1977 “due to his mental
status….”  Ultimately a Medical Evaluation Board (MEB) concluded that the
applicant was suffering from schizophrenia and referred him to a Physical
Evaluation Board (PEB).  The applicant concurred with the findings and
recommendation of the MEB.

5.  An informal PEB concluded, in September 1977, that the applicant’s
schizophrenia was not sufficiently stabilized to the point that a permanent
degree of severity could be determined.  The PEB recommended that the
applicant be discharged and his name placed on the TDRL (Temporary
Disability Retired) list with a disability rating of 30 percent.  The
applicant concurred and waived his right to a formal hearing.

6.  On 25 October 1977 the applicant was discharged by reason of physical
disability and his name was placed on the TDRL the following day.  A
separation document was issued and orders issued on 18 October 1977, a copy
of which the applicant provided with his application, confirm that he was
retired and his name placed on the TDRL.  The orders also indicated that
the applicant’s condition would be reevaluated.

7.  Army Regulation 635-40, which establishes the policies and provisions
for physical evaluation for retention, retirement, or separation of Army
Soldiers, provides that an individual may be placed on the TDRL (for the
maximum period of 5 years which is allowed by Title 10, United States Code,
section 1210) when it is determined that the individual's physical
disability is not stable and he or she may recover and be fit for duty, or
the individual's disability is not stable and the degree of severity may
change within the next 5 years so as to change the disability rating.
Following reevaluation, and once it has been determined that the
individual’s medical condition has stabilized, the individual could
ultimately be found fit, permanently retired providing his final disability
rating was at 30 percent or higher, or, in cases where the final disability
rating was less than 30 percent, entitled to disability severance pay.
Only individuals whose final disability rating is 30 percent or higher are
considered permanently retired by reason of physical disability.

8.  In September 1979 a PEB concluded that the applicant’s “original PEB
findings at 30% and the present finding at 10% reflects the degree of
improvement that the member has experienced during his period on TDRL.”  An
evaluation indicated that while the applicant was unable to work
immediately following his 1977 discharge “for the last 14 to 15 months he
has been employed as a nurses’ aide” and that “according to him his life is
going well and he is satisfied with his improvement.”  The PEB concluded
that the appropriate disposition was entitlement to severance pay in lieu
of permanent retirement.

9.  Information contained in the applicant’s file indicates that he was
provided a copy of the September 1979 PEB findings and recommendation,
signed a postal receipt acknowledging that he had received the
correspondence, but failed to make an election.  The correspondence stated
that “it is assumed that the member accepted the recommendations” and as
such, forwarded the case for final disposition.
10.  On 31 October 1979 the applicant’s name was removed from the TDRL and
he was granted a permanent physical disability rating of 10 percent with
entitlement to severance pay.  A new separation document was not issued.

11.  Army Regulation 635-5 also states, in pertinent part, that a
separation report (DD Form 214) will be prepared at the conclusion of a
period of active Federal service.  An individual whose name is placed on
the TDRL is considered to have been released from active Federal service
and as such is issued a DD Form 214. While on the TDRL individuals do not
accumulate active Federal service and as such when their names are removed
from the TDRL a new DD Form 214 is not issued, as they are not in an
“active” status.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant’s contention that he was
medically retired with a 30 percent disability rating is not entirely
accurate.  The applicant was “temporarily” retired with a 30 percent rating
on 25 October 1977.  His name was placed on the TDRL the day following his
discharge with the understanding that he would be reevaluated at a later
date when his medical condition had stabilized to such a degree that a
permanent rating could be established.

2.  When the applicant was reevaluated it was determined that his condition
warranted a permanent rating of 10 percent.  Thus, he was entitled to
disability severance pay and not permanent disability retirement.

3.  The applicant’s separation document is correct and the fact that he was
subsequently granted disability severance pay vice being permanently
retired is not a basis to change his 1977 discharge from active duty.  A
correction to his separation document is not required and creates no error
or injustice.

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 25 October 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
24 October 1980.  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

___JA___  ___EA __  ___LB___  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.




                                  ____James Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002572                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050407                                |
|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.                      |                                        |


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