RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 6 October 2005
DOCKET NUMBER: AR20040008848
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 |
| |Mr. Robert J. McGowan | |Analyst |
The following members, a quorum, were present:
| |Mr. Curtis Greenway | |Chairperson |
| |Mr. Richard T. Dunbar | |Member |
| |Ms. Laverne V. Berry | |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 retirement date be changed from 1
January 1988 to 29 January 1988.
2. The applicant states that granting his request would give him exactly
28 years of military service. He states "It is only right and fair" to do
so.
3. The applicant provides a copy of Orders D118-3, US Total Army Personnel
Command, Alexandria, Virginia, dated 21 June 1994, establishing his
retirement date as 1 January 1988.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice
which occurred on 21 June 1994, the date of his retirement order. The
application submitted in this case is dated 5 October 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. The applicant entered military service on 30 January 1960. On 1
December 1987, a Physical Evaluation Board (PEB) found him physically unfit
for continued service with a disability rating of 10 percent. The PEB
recommended separation with disability severance pay. The applicant
declined separation with physical disability and opted for transfer to the
Retired Reserve. He was separated on 6 October 1988 and transferred to the
Retired Reserve.
4. The applicant petitioned the ABCMR seeking physical disability
retirement. On 11 May 1994, the Board amended the 1 December 1987 PEB
results to show the applicant had a 30 percent disability rating. The
Board further voided his 6 October 1988 retirement and directed that he be
retired effective 1 January 1988 with a 30 percent disability rating.
5. On 17 August 2001, the applicant again petitioned the ABCMR seeking to
increase his disability rating from 30 percent to 60 percent. On 13 June
2002, the Board denied the applicant's request.
DISCUSSION AND CONCLUSIONS:
1. The applicant's 1 December 1987 PEB decision was amended by the ABCMR
to show he was 30 percent disabled. In doing this, the Board corrected his
retirement date to 1 January 1988, the month following the PEB decision.
2. The applicant's retirement date is correct; there is no error or
injustice. The applicant's statement that "It is only right and fair" to
give him a full 28 years of service is not accepted. The applicant did not
serve 28 years.
3. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 June 1994, the date of his
retirement order establishing 1 January 1988 as his retirement date;
therefore, the time for the applicant to file a request for correction of
any error or injustice expired on 31 December 1991. 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
___clg__ ___rtd__ __lvb___ 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.
Curtis L. Greenway
______________________
CHAIRPERSON
INDEX
|CASE ID |AR20040008848 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20051003 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. |136.0100 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
-----------------------
[pic]
ARMY | BCMR | CY2013 | 20130004690
If the Soldier meets the following criteria, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay: (a) the Soldier is unfit; (b) the disability causing the Soldiers name to be placed on the TDRL has become permanent; and (c) the disability is rated at 30 percent or more under the VASRD, or the Soldier has at least 20 years of active Federal service. A Soldier will be removed from the TDRL and separated with...
ARMY | BCMR | CY2001 | 2001062372C070421
The applicant applied to the Board to correct his records to show he was retired by reason of a physical disability. The VA Rating Decision dated 9 June 1998 shows the evidence established that the applicant’s Meniere’s syndrome was well controlled and stable on medication prior to 20 August 1993. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.
ARMY | BCMR | CY1997 | 9709297
In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice. The USAPDA found the...
ARMY | BCMR | CY2004 | 2004103221C070208
The Rating Decision noted that a 40 percent rating (for the applicant's hip condition) was granted because the physical examination showed he could flex his hip only 10 degrees. It is also noted that the Army rated the applicant's knee condition in May 1994 at 10 percent whereas the VA, even after his numerous complaints of knee problems after the PEB, initially awarded a zero percent rating for his knee condition. There is no evidence that the applicant's ankle condition or injury to his...
ARMY | BCMR | CY2006 | 20060008014
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 April 2007 DOCKET NUMBER: AR20060008014 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. The opinion states that the applicant submitted a request through counsel for correction of his diagnosis at the time of his separation from the military and an increase in disability compensation. Counsel contends the...
ARMY | BCMR | CY2006 | 20060001651C070205
There is no evidence and the applicant did not provide any evidence that shows the PEB did not consider the applicant's mental condition at the time of their evaluation. Notwithstanding the new evidence and argument submitted by the applicant, the evidence of record confirms that the applicant's mental condition was evaluated and considered in the PEB's decision. Evidence further confirms the applicant was discharged accordingly showing retirement by reason of physical disability.
ARMY | BCMR | CY2002 | 2002071508C070402
On 22 October 1986, he completed a physical examination for the purpose of a Medical Evaluation Board (MEB). There is no evidence in the available records of a psychological disorder diagnosis by the Army or the VA. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.
ARMY | BCMR | CY2007 | 20070009571
The applicant requests, in effect, a change of the reason for his discharge from alcohol rehabilitation failure to medical. 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. In an undated document, the appropriate authority approved the recommendation and directed that the applicant be issued an Honorable Discharge Certificate.
ARMY | BCMR | CY2006 | 20060003016C070205
The applicant's military service records contain an OF 275 (Medical Record Report), MEB, dated 8 September 1995. The applicant's military service records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows, in pertinent part, that he was discharged on 15 December 1995 due to physical disability with severance pay. The evidence of record also shows that, at the time, the applicant had less than 20 years retirement service, which required his...
ARMY | BCMR | CY2004 | 2004103598C070208
The applicant requests, in effect, that he be given credit for 20 years of total active service like he was when he retired from the Army by reason of physical disability. The PEB found that the applicant was physically unfit for retention on active duty and recommended permanent disability retirement with a combined rating of 40 percent. The medical evidence of record establishes that the applicant was physically unfit at the time of his separation from the service.