RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           30 August 2005
      DOCKET NUMBER:   AR20040010198


      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. Edmund P. Mercanti            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 her records be corrected to show that she
served 20 years of active duty.

2.  The applicant states that when she was determined physically unfit to
perform her duties by a physical evaluation board (PEB), she was given a
mandatory separation date and told that she had to cash in any unused
leave.  “After my separation the CRDP [Concurrent Receipt and Disability
Payment] was funded and since I [am] missing those 36 days of active duty,
I’m not eligible to draw the payments.”

3.  The applicant believes that it was unjust that she wasn’t allowed to
take terminal leave, and is willing to pay back the money she was given for
her leave if the Board will credit her with the active duty required to
give her 20 years of active duty.  She continues that since she had been
allowed to work for 7 months with a physical profile which limited her to
working 4 hours a day and gave her additional restrictions for working on a
computer, the Army could have allowed her to complete her 20 years of
active duty.

4.  The applicant also explains why she believes that the law which
established CRDP is unjust by excluding Soldiers who are placed on the
Retired List for physical unfitness with less that 20 years of service.

5.  The applicant provides excerpts from her military records; a leave and
earning statement for the period ending 30 June 2002 which shows that she
had 44.5 days of leave accrued; and copies of two pages of Army Regulation
635-40 dated 15 August 1990.  The first page states that Soldiers retired
for physical disability have the same rights as those Soldiers retired for
years of service.  This paragraph explains those rights as commissary, Post
Exchange, and other installation privileges; medical care for the retiree,
spouse and dependent children; and CHAMPUS.  The second page states that
Soldiers may be permitted to use accrued leave in excess of that which may
be sold back to the Government.  If Soldiers have not sold back their
leave, they are required to do so in lieu of using their leave.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 31 August 1982, was awarded the military
occupational specialties of record specialist and personnel services
specialist, and was promoted to pay grade E-8.

2.  On 23 February 2002, the applicant was issued a physical profile for
fibromyalgia, chronic neck pain, and mixed undifferentiated connective
tissue disease.  This profile stated that the applicant was to work half
days, of which no more than two hours could be spent working on a computer.

3.  On 3 June 2002, a PEB was convened which determined that the applicant
was physically unfit due to polyarthralgias, morning stiffness, and diffuse
neck and shoulder pain, for which diagnosis of undifferentiated connective
tissue disease and fibromyalgia have been offered (40 percent); and
migraine headaches, long history, progressing in frequency from 2 or 3
yearly 15 years ago to current frequency of at least monthly requiring
additional medical treatment beyond routine abortive measures, considered
incapacitating (30 percent).  The PEB recommended that the applicant be
separated due to permanent physical unfitness, rated 60 percent disabled.

4.  The applicant’s military records do not contain her Disability
Evaluation System (DES) packet.  The information concerning her PEB was
derived from her DA Form 199, Physical Evaluation Board (PEB) Proceedings,
which was supplied by the applicant, herself.

5.  On 31 August 2002 the applicant was honorably released from active duty
due to permanent disability in the rank of master sergeant, and was placed
on the Retired List the following day in the rank of first sergeant.  She
had 19 years, 10 months and 24 days of active duty.

6.  The Fiscal Year 2004 National Defense Authorization Act provided a 10-
year phase-out of the offset to military retired pay due to receipt of
Department of Veterans Affairs (VA) disability compensation for members
whose combined disability rating is 50% or greater.  This provision is
referred to as CRDP.  Members retired under disability provisions (10 U.S.
Code chapter 61) must have 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not submitted any evidence that she attempted to use
her leave instead of selling it back to the Government.  Since the CRDP was
not signed into law until after the applicant was placed on the Retired
List, there was no advantage for her to remain on active duty to achieve 20
years of active service at the time of her separation.  Since there was no
advantage for her to remain on active duty to complete 20 years of active
service at the time of her separation, absent evidence to the contrary it
must be assumed that she consented to selling her leave.
2.  However, whether or not the applicant attempted to use her leave is
immaterial to this case.  The regulation cited by the applicant clearly
states that “If Soldiers have not sold back their leave, they are required
to do so in lieu of using their leave.”  As such, the applicant had no
right to use her leave in lieu of selling it back to the Government.

3.  The other page of the regulation cited by the applicant is dated prior
to the establishment of CRDP, so could not address that benefit.  However,
the benefits cited by that paragraph were and are provided to retirees who
were and are separated due to physical unfitness.

4.  It would appear that the applicant was satisfied with her separation
until the CRDP was passed into law.  The fact that a law is passed after a
Soldier’s separation which provides benefits to Soldiers who meet certain
criteria does not establish an error or injustice in the separation of the
Soldier.  The Board does not correct military records solely to establish
entitlement to benefits.

5.  The applicant’s contention that since she had been allowed to work for
7 months with a physical profile which limited her to working 4 hours a day
and gave her additional restrictions for working on a computer the Army
could have allowed her to complete her 20 years of active duty is not
accepted as a reason to correct her records.  The Army retained the
applicant on active duty for 7 months with a half day schedule to allow her
to be processed under the DES.  Once that processing was completed, there
was no reason to retain her on active duty any longer.

6.  The applicant’s contention that the law which established the CRDP is
unfair has no bearing on her request.  The Board does not have the
authority to change law.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___pms _  ___lgh___  ____ym _  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.





            _________Paul M. Smith_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010198                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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