RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2005
      DOCKET NUMBER:  AR20040011480


      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
can qualify for Concurrent Retirement and Disability Pay (CRDP).

2.  The applicant states, in effect, that he should have been given credit
for
20 years service instead of 19 years, 6 months and 11 days.  The applicant
further states that he requests an exception to the law because he is 100
percent disabled and needs 20 years active service to draw CRDP.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) with a separation date of 9 May
1997.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
9 May 1997, the date he was released from assignment and duty because of
physical disability.  The application submitted in this case is dated 1
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 that he initially
enlisted in the U.S. Army on 26 October 1977 for a period of 3 years.  The
applicant served continuously until 9 May 1997.  The highest paygrade held
by the applicant was master sergeant/pay grade E-8.

4.  The Narrative Summary (NARSUM), based on a physical examination on
14 October 1996, stated that the applicant did not meet retention standards
under the provisions of Army Regulation 40-501.

5.  On 24 January 1997, a Medical Evaluation Board (MEB) found that the
applicant suffered from a major depressive disorder, recurrent, moderate,
and
referred the applicant to a Physical Evaluation Board (PEB).

6.  On 13 February 1997, the applicant agreed with the MEB's finding and
recommendation.  The applicant also indicated that he did not desire to
continue on active duty under the provisions of Army Regulation 635-40
(Physical Evaluation for Retention Retirement, or Separation).

7.  A record of a telephone conversation between the applicant and the
president of the PEB (an Army colonel) on 27 February 1997 showed that the
applicant was counseled on the criteria for continuing on active duty
(COAD).  According to the record of conversation, the applicant stated that
he could never return to duty in any capacity and wanted out of the Army as
soon as possible.

8.  On 27 February 1997, an informal PEB found the applicant physically
unfit for a major depressive disorder, recurrent, moderate.  The PEB also
found that the applicant's medical and physical impairment prevented
reasonable performance of duties required by his grade and military
specialty.

9.  The PEB recommended a combined rating of 30 percent and that the
applicant be permanently retired due to disability.  The PEB also found
that the applicant's disability was not based on an injury or disease
received as a direct result of armed conflict, caused by an instrumentality
of war, or incurred during a period of war as defined by law.

10.  On 17 March 1997, the applicant concurred with the proceeding and
waived a formal hearing of his case.

11.  On 9 May 1997, the applicant was released from assignment and duty
because of physical disability and, effective 10 May 1997, placed on the
Retired List with a percentage of disability of 30 percent.  He had
completed 19 years,
6 months and 14 days of active service that was characterized as honorable.

12.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of service or a
disability rated at least 30 percent.

13.  Army Regulation 635-40, in pertinent part, states that Soldiers who
are determined physically unfit may request 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.

14.  Army Regulation 635-40, in pertinent, requires that Soldiers with over
18 but less than 20 years of active service be counseled on their right to
request COAD. The Soldier will make his or her election in writing, or the
Physical Evaluation Board Liaison Officer (PEBLO) will include a signed
certificate stating that the Soldier has been counseled and elects not to
submit an election in writing.

15.  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 (DVA) disability compensation for members
whose combined disability rating is 50% or greater.  This provision is
referred to as Concurrent Retirement and Disability Pay (CRDP).  Members
retired under disability provisions (10 U.S. Code chapter 61) must have 20
years of service.

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 can qualify
for CRDP.

2.  Based on the telephone conversation with the president of the PEB, the
applicant clearly did not want to remain on active duty to complete 20
years service.

3.  The Army may approve requests for COAD only when the physical or mental
condition of the Soldier is such where he or she will still be an asset to
the service.  The PEB found that the applicant was unable to perform the
duties of his rank and military specialty.

4.  It would appear that the applicant was satisfied with his 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.  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.

6.  Records show the applicant should have discovered the alleged error now
under consideration on 9 May 1997, the date he was released from assignment
and duty because of physical disability, therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 8 May 2000.  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                 |AR20010011480                           |
|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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