RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 August 2005
      DOCKET NUMBER:  AR20040010411


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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, his retirement date be adjusted to
reflect
20 years of active military service.

2.  The applicant states, in effect, he submitted an application for
regular retirement on 1 April 1985, requesting retirement on 30 April 1986.
 He was medically boarded and in August 1985, he was offered a 30 percent
disability rating based on the results of the medical board.  He was asked
if he accepted the result of the medical board, but was not given the
option to continue to serve to his regular requested retirement date of 30
April 1986.  His disability retirement was approved and he was put in the
disability Retired List on 7 January 1986.  This resulted in his retirement
pay being 49.166 percent instead of 50 percent.  He claims that when he
made his decision to accept the medical board results, he was under the
impression that if you completed more than eight months during the year,
you would be given credit for the full year.  He now requests to be
credited with three months and nine days in order to be credited with 20
years of active military service, which would result in his retired pay
being at the
50 percent level.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 January 1986.  The application submitted in this case is
dated
15 November 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.  On 6 January 1986, the applicant was honorably separated under the
provisions of Army Regulation 635-40 for the purpose of retirement, by
reason of permanent disability.

4.  A Data for Retired Pay (DA Form 3713) prepared on the applicant during
his retirement processing confirms he held the rank of sergeant first class
(SFC) and that this was the highest rank he attained while serving on
active duty.  This document also shows he completed a total of 19 years, 8
months and 20 days of active military service upon which his disability
retired pay would be computed, and that he had a disability percentage of
30 percent.  It also confirms he completed a total of 21 years, 8 months
and 18 days of military service for longevity pay (pay scale) purposes.

5.  Headquarters, Department of the Army (DA), United States Army Military
Personnel Center (MILPERCEN) Orders Number D216-9, dated 18 November 1985,
directed the applicant’s release from active duty (REFRAD) because of
physical disability on 6 January 1986, and his placement on the Retired
List on
7 January 1986.  These orders confirmed the applicant’s retired grade was
SFC and that his percentage of disability was 30 percent.

6.  The Physical Evaluation Board (PEB) proceedings pertaining to the
applicant are not on file in his Official Military Personnel File (OMPF).
The record does include a properly constituted separation document (DD Form
214) that was issued to the applicant on 6 January 1986, upon his REFRAD
for retirement.  This document shows he was separated under the provisions
of Army Regulation 635-40, by reason of permanent disability.  It also
shows he completed 19 years, 8 months and 19 days of active military
service, and a total of 21 years, 8 months and 17 days of military service.


7.  Title 10 of the United States Code, Section 1208 (10 USC 1208) provides
guidance on computation of service for disability retirement purposes.  It
states, in pertinent part, that a member of a regular component shall be
credited with the service he is considered to have completed for the
purpose of separation, discharge, or retirement for length of service.

8.  10 USC 1405 provides guidance on the computation of the years of
service for retired pay purposes.  It states, in pertinent part, that the
retired pay computation will be based on the members’ years of active duty
service.  It further states that fractional years of service will be
credited by granting 1/12th of a year for each full month of service in
excess of a full year of service completed, and remaining fractional part
of a month shall be disregarded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be credited with 3 months of
active duty service so that his retired pay computation can be based on 50
percent was carefully considered.  However, there is an insufficient
evidentiary basis to grant the requested relief.

2.  By law and regulation, disability retired pay is computed using the
actual period of active duty service completed by the member.  The evidence
of record in this case confirms the applicant actually completed 19 years,
8 months and
20 days of active military service and that his retired pay was computed
based on this total period of active duty service.  Therefore, there is no
error or injustice related to the retired pay computation used in the
applicant’s case.

3.  In view of the facts of this case, it would be inappropriate to credit
the applicant with three additional months of active duty service he did
not actually serve.  In order to justify correction of a military record
the applicant must show to the satisfaction of the Board, or it must
otherwise satisfactorily appear, that the record is in error or unjust.
The applicant has failed to submit evidence that would satisfy this
requirement

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 January 1986.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 5 January 1989. He failed to 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

___MHM_  ___JTM _  ___JBG_  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 H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010411                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/16                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1986/01/06                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Permanent Disability                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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