RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2005
      DOCKET NUMBER:  AR20040010628


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 military records be
corrected to show that he completed 20 years of active service so that he
may be granted Combat Related Special Compensation (CRSC).

2.  The applicant states, in effect, that

      a.  there is an error and injustice in his record that continues to
follow his military status that causes him to be denied many benefits and
future entitlements;

      b.  he never had the opportunity to maintain his status as a twenty
year Soldier because of the error and injustice imposed on him in August of
1983; and

      c.  because of this error and injustice he is denied entitlements,
eligibilities and pay based on new and future laws.

3.  The applicant provides a copy of:

      a.  his Retiree Account Statement effective 2 December 2004;

      b.  his SBP/RSFPP Premium Statement for the month of January 2005;
and

      c.  a copy of a page from the military.com website.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 April 1989, the date of approval of the ABCMR decision to
correct the applicant's records to show he was permanently retired due to
disability.  The application submitted in this case is dated 4 December
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's military service records show he enlisted on 6 July
1972 and served continuously on active duty until 1 December 1983.  He had
completed a total of 11 years, 4 months, and 26 days of active service.
The highest grade held by the applicant was staff sergeant/pay grade E-6.

4.  The applicant was discharged on 1 December 1983 with a discharge under
honorable conditions.

5.  On 25 November 1987, the ABCMR (AC85-06353) corrected the applicant's
Department of the Army Records to show that the period of service
terminating on 1 December 1983 was characterized as honorable.  The ABCMR
decision also changed the reason for his discharge to Secretarial
Authority.

6.  On 15 March 1989, the ABCMR (AC85-06353A) corrected the applicant's
Department of the Army Records to show that:

      a.  on 1 December 1983, the applicant was found unfit for duty by
reason of schizophrenia, paranoid, rated 30 percent, that the disability
was incurred in line of duty but not as a direct result of armed conflict
or caused by an instrumentality of war, and that he was placed on the
Temporary Disability Retired List (TDRL); and

      b.  on 25 June 1985, the applicant's disability was determined to be
permanent, rated 50 percent disabling, and that he was removed from the
TDRL and that, effective 26 June 1985, he was permanently retired in the
highest grade held.

7.  On 12 January 2004, the applicant's application for CRSC was denied by
the U.S. Army Physical Disability Agency because he did not have 20 years
of active service.

8.  CRSC, as established by Section 1413a, Title 10, United States Code, as
amended, states that eligible members are those retirees who have 20 years
of service for retired pay computation (or 20 years of service creditable
for reserve retirement at age 60) and who have disabilities that are the
direct result of armed conflict, specially hazardous military duty,
training exercises that simulate war, or caused by an instrumentality of
war.  Such disabilities must be compensated by the VA and rated at least
10% disabling.  For periods before 1 January 2004 (the date this statute
was amended), members had to have disabilities for which they have been
awarded the Purple Heart and are rated at least 10% disabled or who are
rated at least 60% disabled as a direct result of armed conflict, specially
hazardous duty, training exercises that simulate war, or caused by an
instrumentality of war.  CRSC benefits are equal to the amount of VA
disability compensation offset from retired pay based on those disabilities
determined to be combat-related.

9.  Army Regulation 635-40, paragraph 7-2, provides that an individual may
be placed on the TDRL (for the maximum period of 5 years which is allowed
by Title 10, United States Code, section 1210) when it is determined that
the individual’s physical disability is not stable and he or she may
recover and be fit for duty, or the individual’s disability is not stable
and the degree of severity may change within the next 5 years so as to
change the disability rating.

10.  Paragraph 3-10 of this regulation states that Soldiers who are
determined physically unfit may request continuance on active duty (COAD).
The Army may approve such requests only when the physical condition of the
Soldier is such where he or she is still an asset to the service.  When a
Soldier is approved for COAD, he or she will be referred to another medical
evaluation board and physical evaluation board in accordance with paragraph
6-14 of this regulation when separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to
show that he completed 20 years of active service so that he may be granted
Combat Related Special Compensation (CRSC).  He further contends that there
is an error and injustice in his record that continues to follow his
military status that causes him to be denied many benefits and future
entitlements.

2.  The applicant further contends that he never had the opportunity to
maintain his status as a twenty year Soldier.

3.  The applicant had 11 years, 4 months and 26 days of service for retired
pay computation.  Since this is less than the 20 years of service for
retired pay computation required by law for CRSC, he is not entitled to
this benefit.

4.  The ABCMR upgraded the applicant’s general discharge because the
positive urinalysis test was not legally supportable.  However, the ABCMR
held that his discharge was proper and just because the applicant was also
diagnosed as having a personality disorder and had made a suicide gesture.


5.  The ABCMR subsequently corrected the applicant’s upgraded discharge to
placement on the TDRL and subsequent placement on the Retired List for
physical unfitness because of a medical assessment that the applicant was
exhibiting early symptoms of paranoid schizophrenia when he was on active
duty.

6.  When the ABCMR determined that the applicant was physically unfit, the
Board could have made the recommendation it made, or it could have
recommended that the applicant’s records be corrected to show that he was
COAD.

7.  Since the Army may approve requests for COAD only when the physical
condition of the Soldier is such where he or she is still an asset to the
service, the ABCMR properly recommended that the applicant be placed on the
TDRL and not COAD.  The applicant could not have been an asset to the
service when he was exhibiting symptoms of paranoid schizophrenia.

8.  The fact that a law is passed after a Soldier is separated which
provides benefits to Soldiers who meet established 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.

9.  In order to justify correction of a military record the applicant must,
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.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 April 1989, the date of approval of
the ABCMR decision to correct the applicant's records to show he was
permanently retired due to disability; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 11 April 1992.  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

___rld ___  ____jrm _  ____slp_  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.




                                  _________Shirley L. Powell_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010628                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050913                                |
|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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