RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 APRIL 2005
      DOCKET NUMBER:  AR20040004169


      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. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Karen Heinz                   |     |Member               |
|     |Mr. Lawrence Foster               |     |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 “retirement” date be
adjusted from
2 June 1995 to 22 June 1995 so that his “service percent multiplier” will
be changed from 19 years, 11 months, and 10 days, to 20 years.

2.  The applicant states that he already had an approved retirement date
when he had a massive stroke.  He states that his doctor told him that his
discharge and retirement would “both be 20 years.”  However, he states that
because his spouse had to “take care of matters” for him, she gave the
doctor the wrong dates.

3.  The applicant states that he believes that he “earned [his] concurrent
pay” and that the “few days difference should be set aside.”

4.  The applicant provides a copy of his separation document, a copy of his
disability retirement orders, and a copy of his retired pay data sheet in
support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice which occurred on 2 June 1995.  The application submitted in this
case is dated 9 July 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 initially
entered active duty in July 1972 and was discharged in February 1975 after
serving a period of 2 years, 6 months, and 5 days.

4.  On 28 December 1977 he reenlisted and returned to active duty.



5.  According to an entry on his Department of the Army Form 2-1 (Personnel
Qualification Record), the applicant submitted a request for retirement,
based on length of service, on 7 July 1994.  His requested effective date
was 1 July 1995.  Orders issued on 29 July 1994 indicated that he would be
assigned to the Transition Point at Fort Sill, Oklahoma on 30 June 1995 and
that his name would be placed on the retired rolls on 1 July.

6.  According to a Medical Evaluation Board (MEB) summary, the applicant
arrived at the emergency room of Reynolds Army Community Hospital, Fort
Sill, on 28 September 1994 with complaints of slurred speech, confusion and
right-sided hemiparesis.  He noted the symptoms began while he was driving
his car and had stopped at a traffic light.  The initial diagnosis was
“acute stroke.”

7.  The applicant was admitted to the hospital and showed significant
improvement during his hospitalization.  Although he regained his ability
to understand speech, he retained his “severe expressive aphasia and right
hemiplegia.”  On 5 October 1994 he was released from the hospital to the
care of his spouse who was a “home health care nurse.”  He was subsequently
admitted to the Southwestern Medical Hospital in Lawton, Oklahoma for
“physical therapy and speech therapy under their rehabilitation program.”
After two weeks of the training program he showed “improvement in his
dysarthria and slight improvement in the functions of the right side of his
body” but still had “profound paralysis on the right side of his body.”
His final diagnosis was “left cerebrovascular accident” and the examining
physician recommended referral to a Physical Evaluation Board.  The MEB
document notes that the applicant did not desire to continue on active
duty.  The applicant concurred with the findings and recommendation of the
MEB.

8.  On 7 February 1995 an informal Physical Evaluation Board (PEB)
concluded that the applicant’s “left cerebrovascular accident with residual
dysarthria and paralysis of right side of body” prevented reasonable
performance of duties required by grade and specialty.  The PEB recommended
that the applicant be permanently retired with a disability rating of 80
percent.  The applicant concurred with the findings and recommendation of
the informal PEB and waived his right to a formal hearing.

9.  Included with the documents associated with his disability processing
was a counseling document, which the applicant authenticated on 17 February
1995, indicating that he had been counseled on the criteria and procedures
for requesting continuance on active duty.  A PEB Liaison Officer also
authenticated the counseling document.

10.  On 2 June 1995 the applicant was retired by reason of physical
disability in pay grade E-7.  He had 19 years, 11 months, and 10 days of
active Federal service at the time.

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.  In addition to the preceding, an
individual who has 15 years but less than 20 years, or is qualified in a
critical skill or shortage specialty, or disability as result of combat,
may also be considered for continued active duty.

12.  Army Regulation 635-40 also states that when a Soldier with 18 years
but less than 20 years of active service is referred to a PEB for further
processing and elects not to submit a request for continuation on active
duty, such election will be in writing and attached to the MEB proceedings.
 If the Soldier does not indicate in writing his or her desire not to
request continuation on active duty, the PEB Liaison Officer will include a
signed certificate stating that the Soldier has been counseled and elects
not to submit an election in writing.

13.  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 on or before 7 September 1980, retired pay base
is computed on the highest grade “satisfactorily” held or the current
grade.  Department of the Army makes the final grade decision.




14.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  While the documents associated with either the applicant’s request for
or declination of continued active duty were not available to the Board,
the evidence which is available suggests that the applicant was at least
aware that such a request could have been made.  The counseling statement,
signed by the applicant and the Liaison Officer, and the statement on his
MEB document, supports this conclusion.  His argument that his spouse
provided the wrong dates to his physician is not supported by any evidence
in available records and would not likely have had any impact on the date
the applicant was medically retired, because at that time there was no
financial advantage to be gained by his remaining in active status.

2.  Notwithstanding the absence of an election statement, the applicant had
no inherent right to remain on active duty merely to attain 20 years of
active Federal service.  As such, there is no error or injustice in his
medical retirement with less than 20 years of service.  It should be noted
that the applicant concurred with the findings and recommendation of the
PEB and waived his entitlement to a formal hearing.

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 may be 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
that, given the debilitating nature of his condition, that such a request
would have been approved.

4.  Additionally, it would be inappropriate to change the applicant’s
retirement date merely to enable him to take financial advantage of a
program which was not available at the time of his disability retirement,
10 years ago.  To do so would suggest that the Board should grant relief in
a multitude of cases (i.e. enlistment/reenlistment bonus programs,
increases in Serviceman’s Group Life Insurance benefits, early retirement
programs, or special separation benefit programs involving financial
incentives) where legislation, approved years after the fact, might now
provide additional financial benefits to individuals which were not
available during their periods of military service.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 June 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
1 June 1998.  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

___MM__  ___KH __  ___LF___  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.


                                  ______Melvin Meyer________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040004169                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050426                                |
|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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