RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        09 AUGUST 2005
      DOCKET NUMBER:  AR20040011239


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick McGann                |     |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 “regular” retirement for
length of service be corrected to show that he was retired by reason of
physical disability, due to an instrumentality of war, with a disability
rating of 100 percent.

2.  The applicant states that he received approval for Combat-Related
Special Compensation (CRSC), however, the Defense Finance and Accounting
Service (DFAS) in Kentucky is denying him Concurrent Disability Retired Pay
and Combat Related Special Compensation because his records do not show
that he was retired by reason of physical disability.  He states that
Public Law 108-136 substantiates his eligibility.

3.  The applicant provides a copy of his 3 February 2004 letter from the
United States Army Physical Disability Agency approving his application for
CRSC and a copy of an undated letter to the applicant’s congressional
representative from DFAS informing him that he was not eligible to receive
CRSC or CRDP (Concurrent Retirement and Disability Pay) because he had
elected to waive his military retired pay in order to receive a civil
service annuity.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 December 1985.  The application submitted in this case
is dated
3 December 2005.

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.  Records available to the Board indicate that the applicant served an
initial period of active duty between April 1965 and January 1968.  After
an 8-month





break in service he returned to active duty on 30 September 1968 and served
continuously until his retirement for length of service on 31 December
1985.  At the time of his retirement he had 20 years and 5 days of active
Federal service.

4.  During the applicant’s military service he performed duties in the
supply and administration field.  He was promoted to pay grade E-7 in July
1982.  He submitted his request for voluntary retirement on 16 January 1985
while assigned to Fort Hood, Texas.

5.  A separation physical examination, conducted on 30 September 1985 noted
that the applicant reported he was a diabetic (adult mellitus) since June
1982 but that the condition, at the time of the physical examination was
“presently under control.”  He also noted some hearing loss and had a “P-3”
profile for hearing.  His remaining profile, including for his eyes, was
recorded as all 1’s.  The applicant was found to be medically qualified for
retirement.

6.  It is unclear when the applicant initially received disability
compensation from the Department of Veterans Affairs for medical conditions
which that agency determined were service connected and warranted
disability ratings.

7.  However, on 3 February 2004 the applicant was notified by officials at
the United States Army Physical Disability Agency, Combat-Related Special
Compensation Branch, that his application for CRSC had been approved.  The
notification letter indicated that the applicant’s “total combat related
disability” determination was 100 percent based on his “blind one eye,
impaired vision other” and his “diabetes mellitus.”

8.  Combat-Related Special Compensation, for certain disabled Uniformed
Service Retirees, was enacted by Section 636 of the National Defense
Authorization Act for Fiscal Year 2003 under Public Law 107-314 on 2
December 2002.  Initially, under that law, a 60 percent or higher rating or
a disability associated with a Purple Heart was required in order to be
eligible for CRSC However, Public Law 108-136, the National Defense
Authorization Act for Fiscal Year 2004, extended CRSC eligibility to
retired members who have a combat-related disability rating between 10
percent and 50 percent by the Department of Veterans Affairs.  Combat-
related disabilities include disabilities that are the result of armed
conflict, hazardous duty, or training exercise.  CRSC may entitle





certain veterans to additional funds which are designed to compensate the
veteran for the reduction of his or her military retired pay due to the
receipt of Department of Veterans Affairs Compensation.  Eligibility is
limited to veterans who have 20 or more years of active service.  A
veteran, who waives his or her military retired pay in order to credit
military service to qualify for civil service retirement, is not eligible
for CRSC.

9.  In response to an inquiry from the applicant’s congressional
representative, an official at DFAS in Kansas City, informed the
representative that the applicant had elected to waive his military retired
pay, on 2 February 2003, in order to receive a civil service annuity.  As
such, the applicant was not entitled to receive his military retired pay.
The letter noted that retirees who waive their retired pay in order to
receive a civil service annuity are not eligible to receive CRDP
(Concurrent Retirement and Disability Pay) or CRSC.  The letter advised the
applicant to apply to this Board to “correct the nature of his retirement.”

10.  CRDP, also known simply as Concurrent Disability Pay, was also enacted
as part of Public Law 108-136.  That law contained a provision to restore
the retired pay currently deducted from retirees’ accounts due to their
receipt of Department of Veterans Affairs compensation.  It is applicable
to all retirees who have a Department of Veterans Affairs rated, service-
connected disability of 50 percent or higher, with the exception of
disability retirees with less than 20 years of service and retirees who
have combined their military time and civil service time to qualify for a
civil service retirement.  An individual can not receive CRSC and CRDP
simultaneously, but may select the one most favorable to them if all other
requirements have been met.

11.  Information from a United States Office of Personnel Management
publication regarding “Retirement Facts” notes that military service in the
Armed Forces of the United States is creditable for Civil Service
Retirement purposes only if it was active service and terminated under
honorable conditions and the service was performed before separating from a
civilian position under the Retirement System.  The publication states that
as an exception to the general rule cited above is that an individual
cannot receive credit for any military service if that individual receives
retired pay, unless the awarded retired pay was based on a service-
connected disability either incurred in combat with an enemy of the United
States or caused by an instrumentality of war and incurred in the line of
duty during a period of war.




12.  Army Regulation 40-501 provides that for an individual to be found
unfit by reason of physical disability, he must be unable to perform the
duties of his office, grade, rank or rating.  It also states that
performance of duty despite an impairment would be considered evidence of
physical fitness.

13.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  However,
an award of a VA rating does not establish error or injustice in the basis
for separation from the Army.  An Army disability rating is intended to
compensate an individual for interruption of a military career after it has
been determined that the individual suffers from an impairment that
disqualifies him or her from further military service.  The VA, which has
neither the authority, nor the responsibility for determining physical
fitness for military service, awards disability ratings to veterans for
conditions that it determines were incurred during military service and
subsequently affect the individual’s civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  In spite of the fact that the applicant’s service connected
disabilities, which are being compensated by the Department of Veterans
Affairs, may have been approved by the United States Army Physical
Disability Agency for Combat-Related Special Compensation, there is no
evidence that he was unfit at the time of his 1985 retirement for length of
service.

2.  Additionally, the applicant’s inability to participate in the CRSC and
CDRP programs because he elected to combine his military and civil service
to qualify for civil service retirement, is not evidence of any error or
injustice in the basis for his honorable discharge from active duty in
1985, which was based on his voluntary request for retirement.  There is no
evidence of any error or injustice which would warrant correcting the
“nature of his retirement.”

3.  Although the applicant may have several service-connected disabilities,
none of those conditions were such that they impacted on his ability to
perform his military duties while in the Army.  The evidence of record
indicates he did not have any medically unfitting disability which required
physical disability processing.  Therefore, there is no basis for physical
disability retirement.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 December 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 December 1988.  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

___BE __  ___KW __  ___PM__  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.




                                  ______Barbara Ellis________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011239                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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