RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 March 2005
      DOCKET NUMBER:  AR20040003291


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Mr. Antonio Uribe                 |     |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 that his records be corrected to show he was
authorized severance pay.

2.  The applicant states that he was released from the Army National Guard
(ARNG) by a medical board and received no severance pay.

3.  The applicant provides no supporting evidence but cites his Department
of Veterans Affairs (VA) claims case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 December 1992.  The application submitted in this case is
dated 30 May 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.  The applicant's ARNG records, except for his NGB Form 22 (Report of
Separation and Record of Service) and a few other documents, and his ARNG
medical records are not available.

4.  The applicant served in the Regular Army from 29 September 1988 through
17 January 1992 when he was released from active duty under the fiscal year
1992 early transition program.  He had served as a Bradley Fighting Vehicle
Systems Mechanic.  He enlisted in the ARNG on 18 January 1992.

5.  The applicant's Regular Army medical records show that he was treated
numerous times for knee problems.

6.  The applicant was discharged from the ARNG and as a Reserve of the Army
on 14 December 1992 for being medically unfit for retention.  He had
completed a total of 4 years, 2 months, and 16 days of service for pay.

7.  Title 10, U. S. Code, section 1206, provides for the physical
disability separation of a member on active duty for 30 days or less and a
disability rated at less than 30 percent provided, among other conditions,
the disability was the proximate result of performing active duty or
inactive duty training or of traveling directly to or from the place at
which such duty is performed.

8.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

9.  Title 10, U. S. Code, section 1212(c) states that the amount of
disability severance pay received shall be deducted from any compensation
for the same disability to which the former member becomes entitled under
any law administered by the VA.  Thus, VA compensation may be withheld as
an offset on a monthly basis until the total amount of military severance
pay has been recovered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's ARNG medical board packet is not available so it cannot
be what disability he had that led to the determination he was medically
unfit for retention.  Whatever the condition(s) was, the disability had to
have been the proximate result of the applicant's performing active duty or
inactive duty training or of traveling directly to or from the place at
which such duty was performed before he would have been entitled to
severance pay.

2.  In addition, it appears the applicant has made a VA claim for
disability compensation.  If he is drawing VA disability compensation, any
severance pay he would have received would have been recovered before his
VA disability compensation payments would be started.

3.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 December 1992; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   13 December 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

__wtm___  __rd____  __au____  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 T. Morrison__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003291                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050301                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.08                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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