RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 February 2005
      DOCKET NUMBER:  AR20040004864


      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:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Jonathan K. Rost              |     |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, through his Senator's office, that his records
be corrected to show he was retired by reason of physical disability after
completing 20 years of creditable active service.

2.  The applicant, through his Senator's office, states that he was
medically retired just days short of 20 years.  Without the full 20 years,
he is ineligible for concurrent receipt of retired pay.  He is hopeful that
travel to and from medical follow-up examinations as well as the time spent
at the military medical installations can be added to his active duty time
so he may reach that 20-year milestone.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 2 November 1989; a
recomputation statement dated 27 October 1989; a DA Form 3713 (Data for
Retired Pay) dated 20 September 1989; a DA Form 31 (Request and Authority
for Leave) dated       3 October 1989; orders placing him to the Temporary
Disability Retired List (TDRL); orders, dated 15 November 2000, amending
his TDRL orders; orders removing him from the TDRL; 12 photographs of his
helicopter crash site; an SBP (Survivor Benefit Plan) Briefing statement
dated 20 October 1989; a notification of TDRL examination dated 19 November
1990; TDRL physical examination orders dated 19 November 1990; a TDRL
physical examination appointment notice dated 9 January 1991; and a notice
of retention on the TDRL dated 2 May 1991.

4.  The applicant also provides a letter from the U. S. Army Finance and
Accounting Center, dated 21 September 1990, concerning discontinuance of
his retired pay due to Veterans Administration (VA) compensation exceeding
his retired pay; a psychiatric addendum dated 30 October 1992; a
notification of TDRL examination dated 17 June 1992; TDRL physical
examination orders dated 17 June 1992; a TDRL physical examination
appointment notice dated    14 August 1992; a travel voucher prepared 22
September 1992; a military pay voucher dated 11 September 2003; a DA Form
3647 (Inpatient Treatment Record Cover Sheet) dated 15 February 1993; and a
memorandum, subject:  Transmittal of Separation Documents, dated 25 January
1993.

5.  The applicant also provides his Certificate of Retirement; his DA Form
2-1 (Personnel Qualification Record); his warrant officer appointment
orders; his active duty orders; his Officer Record Brief; his promotion to
Chief Warrant Officer Two orders; and a letter dated 10 November 2003 from
the Defense Finance and Accounting Service (DFAS) to his Senator.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 2 November 1989.  The application submitted in this case is
dated 29 January 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.  After having had prior enlisted service, the applicant was appointed a
warrant officer with a military occupational specialty (MOS) of helicopter
pilot and entered active duty on 6 May 1982.

4.  On 6 May 1988, the applicant was involved in a helicopter crash.  A
Medical Evaluation Board (MEB) Narrative Summary dictated 12 July 1989
noted his diagnoses as: (1) severe trauma with compression fractures of T-
12 and L-1, 2, and 4; (2) grade I spondylolisthesis L-4 on L-5; (3) marked
restriction of motion lumbar spine in all degrees of freedom; (4) status
post pulmonary embolism; (5) closed head trauma with post traumatic
encephalopathy; (6) severe low back pain secondary to diagnosis number 1;
(7) sciatica, secondary to diagnosis number 1; (8) left orbital rim
fracture with resultant decrease in visual acuity; and (9) visual
disturbance secondary to diagnosis number 8.

5.  An Addendum to the MEB Narrative Summary noted a psychiatry
consultation revealed the applicant had moderate post concussive
encephalopathy with an unknown prognosis.  It also noted that he had mild
visual perceptual defects of a moderate deficit in visual detail; also,
minimal to moderate deficit in visual organization with severe deficit
visual perceptual rate of response with poor self-correction and accuracy
for math and functional testing of activities of daily living.

6.  The MEB recommended the applicant be referred to a Physical Evaluation
Board (PEB).

7.  On an unknown date, the applicant applied for continuance on active
duty.

8.  On 20 July 1989, an informal PEB found the applicant to be unfit for
duty due to compression fractures of T-12 and L-1, 2, and 4 and Grade I
spondylolisthesis L-4 on L-5 with residual marked limitation of motion and
sciatica (MEB diagnoses numbers 1, 2, 3, 6, and 7).  The informal PEB also
found him to be unfit due      to closed head injury with traumatic
encephalopathy and visual perception impairment productive of definite
social and industrial impairment (MEB diagnosis number 5).  The PEB
recommended he be placed on the TDRL.

9.  The applicant's request for continuance on active duty was either
disapproved or he withdrew his request.  On 21 July 1989, he concurred with
the findings and recommendation of the informal PEB and waived a formal
hearing of his case.

10.  On 2 November 1989, the applicant was released from active duty after
completing 19 years, 11 months, and 9 days of creditable active service and
placed on the TDRL effective 3 November 1989 with a 60 percent disability
rating.

11.  Apparently sometime around September 1990, the applicant began to draw
VA compensation that exceeded the amount of his retired pay.  His retired
pay was discontinued.

12.  Orders dated 19 November 1990 authorized the applicant to travel to
Fort Carson, CO to complete a periodic TDRL physical examination in January
1991.
He was retained on the TDRL.

13.  Orders dated 17 June 1992 authorized the applicant to travel to Fort
Carson, CO to complete a periodic TDRL physical examination in September
1992.  He apparently had his first appointment scheduled for 31 August
1992.  The applicant provided a memorandum, subject:  Psychiatric Addendum
to TDRL, dated 30 October 1992.  That memorandum does not indicate when the
psychiatric examination took place.

14.  The 1992 TDRL periodic physical examination recommended the applicant
be removed from the TDRL and permanently retired.  On 17 November 1992, he
agreed with the findings and recommendation.  U. S. Total Army Personnel
Command Orders D14-7 dated 25 January 1993 removed him from the TDRL
effective 15 February 1993 and permanently retired him with a disability
rating of 70 percent.

15.  As a result of action by this Board, the orders placing the applicant
on the TDRL in 1989 were amended on 15 November 2000 to show his retired
grade of rank as Chief Warrant Office Three.

16.  By letter dated 10 November 2003, the DFAS informed the applicant's
Senator that his "effective date of retirement is February 16, 1993."

17.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purpose of his employment on active duty.


18.  Army Regulation 635-40 states that to be considered for continuance on
active duty, a Soldier must be (a) found unfit by a PEB because of a
disability that was in the line of duty; (b) 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; (c) physically capable of performing useful duty in
an MOS for which he or she is currently qualified or potentially trainable;
and (d) eligible due to (1) having        15 years but less than 20 years
of total service; or (2) qualified in a critical skill or shortage MOS; or
(3) disability is the result of combat.

19.  Army Regulation 635-40 also prescribes the function of the TDRL.  The
TDRL is used in the nature of a “pending list.”  It provides a safeguard
for the Government against permanently retiring a Soldier who can later
fully recover, or nearly recover, from the disability causing him or her to
be unfit.  Conversely, the TDRL safeguards the Soldier from being
permanently retired with a condition that may reasonably be expected to
develop into a more serious permanent disability. A Soldier's name may be
placed on the TDRL when it is determined that the Soldier is qualified for
disability retirement but for the fact that his or her disability is
determined not to be of a permanent nature and stable.

20.  Title 10, U. S. Code, section 1202 provides that if a member would be
qualified for retirement for disability but for the fact that his
disability is not determined to be of a permanent nature and stable, the
Secretary shall, if he also determines that accepted medical principles
indicate that the disability may be of a permanent nature, place the
member's name on the TDRL with retired pay computed under section 1401 of
this title.

21.  The fiscal year 2004 National Defense Authorization Act provided for
phased-in restoration of the retired pay deducted from the accounts of
military retirees because of their receipt of VA compensation.  Concurrent
Retirement and Disability Payments (CRDP) applies to all retires with VA-
rated, service-connected disability of 50 percent or higher but does not
apply to disability retirees with less than 20 years of service.  The
phased-in restoration began       1 January 2004.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a helicopter pilot who was injured in a helicopter
crash in May 1988.  Due to the severity of his injuries, an informal PEB
found he was unfit for duty and recommended he be placed on the TDRL. Also
due to the severity of those injuries it appears he would not have been
eligible for continuation on active duty.  The applicant concurred with the
findings and recommendation of the TDRL and waived a formal hearing of his
case.  He was then placed on the TDRL effective 3 November 1989 with a 60
percent disability rating after completing 19 years, 11 months, and 9 days
of creditable active service.

2.  The DFAS letter dated 10 November 2003 informed the applicant's Senator
that the applicant's effective date of retirement was 16 February 1993.
However, when the applicant was placed on the TDRL on 3 November 1989 he
was in a retired status drawing retired pay.  The only change that occurred
on 16 February 1993 was that his status changed from temporarily retired to
permanently retired with a 70 percent disability rating.

3.  The Board recognizes that the applicant spent a number of days
traveling to and from his periodic TDRL physical examinations and spent
time at the military hospital at Fort Carson, CO.  However, he was still in
a retired status during those times.  He was not on active duty.

4.  Around September 1990, the applicant's retired pay was discontinued in
accordance with the law at the time because his VA compensation exceeded
his military retired pay.

5.  A law providing for concurrent receipt of military retired pay and VA
disability compensation passed 15 years after the applicant retired.
However, the law does not apply to disability retirees with less than 20
years of service.  Regrettably, the passage of a law 15 years after the
applicant retired for physical disability 21 days short of completing 20
years of active duty, with his concurrence of the findings of an informal
PEB, is insufficient reason to grant   the relief requested.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 November 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     2 November 1992.  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

__ym____  __rjw___  __jkr___  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.




            __Yolanda Maldonado___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004864                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050224                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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