RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 October 2005
      DOCKET NUMBER:  AR20040011508


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Laverne V. Berry              |     |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, a medical discharge.

2.  The applicant states that on 26 January 1996, he was at active duty
training and trying to secure pallets of equipment during an ice/snow
storm.  One of the pallets had become frozen to the flat bed before he
could get it squared up and chained down.  He was on his knees to use his
shoulder for leverage while two other Soldiers stood and shoved the pallet
from the other side.  When the pallet finally broke free, he was pushed
over the edge of the flatbed.  He grabbed a chain with his left hand to
keep from falling and by doing this he dislocated his shoulder.  When he
lost his hold on the chain he fell to the ground on his right hand and
elbow trying to break the fall.  He was barely aware of the injuries to his
right hand because of the severe pain in his left dislocated shoulder.  At
the time, the only treatment given him was to his left arm.  Through months
and months of therapy he was able to regain the use of his left arm with
limitations.  At the time he was dual status, in the Reserve and employed
at the Area Maintenance Support Activity (AMSA) shop.  At the time of the
accident, he was a heavy mobile repair technician.  In May 1996, he
returned to the AMSA shop but was unable to return as a mechanic.  He was
placed on light duty, but in a mechanic shop, there really is no light
duty.  He finally was allowed to retain a position as a small arms
repairer.

3.  The applicant states that in March 1998, he was requested to appear
before a Medical Review Board at Fort Lewis.  At the hearing, he was called
all but a liar about how he received his injury and the board gave him two
choices on how he wanted to be removed from the Reserve:  a) transfer to
the Retired Reserve per Title 10, United States Code (USC), section 1209,
with entitlement to apply for retirement benefits upon reaching age 60
(this choice would allow him to keep his job as dual status civil service
at the AMSA shop), or b) be discharged with entitlement to disability
severance pay.  He has been advised by at least three Department of
Veterans Affairs (VA) representatives that he should have been given a
medical discharge.

4.  The applicant adds that on 19 August 2004, he went for an
unemployability hearing.  At that hearing, he was asked again why he was
not given a medical discharge.  He explained, that he was advised that if
he took the medical discharge, he would lose his job.  He is presently
unable to work and he was obviously given very bad advice from the medical
board and the judge advocate

 general’s corps officer who represented him at the time of his hearing at
Ft. Lewis. To this very day, he has never received any formal letter
stating that he was placed in the Retired Reserve.

5.  The applicant provides copies of his signature page of his oath of
enlistment; his PEB Proceedings; his DA Form 199-1 (Election to Formal
Physical Evaluation Board (PEB) Proceedings); a response from the Chief,
Personnel Management Division, United States Army Reserve Command, to his
attorney; his Transfer to an Inactive Status or Discharge with Severance
Pay election memorandum; his Retired Reserve assignment orders, and his VA
Monthly Compensation Letter.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The applicant's counsel elected to remain silent to allow the applicant to
present his case in his own behalf.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 26 August 1999, the date of his transfer to the Retired
Reserve.  The application submitted in this case is dated 15 September
2004, but was received for processing on 23 December 2004.

2.  Title 10, U.S. Code (USC), 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 records show that he was inducted into the
Army of the United States as a private, pay grade E-1, effective 13 May
1970.  He completed training and was assigned military occupational
specialty (MOS) 36C20, lineman.  He was released from active duty effective
17 November 1971 and was transferred to the United States Army Reserve
(USAR) Control Group (Annual Training).

4.  He enlisted in the USAR as a specialist, pay grade E-4, effective 13
July 1976.  He completed training and served in MOS 63B40, light-wheel
vehicle mechanic.
5.  The applicant's records do not show when he appeared before Medical
Evaluation Board (MEB) and do not contain any MEB Proceedings; however,
Item 11, DA Form 199, shows the MEB results as an exhibit submitted to the
PEB for its review.

6.  On 24 March 1998, the applicant, with counsel, appeared before a PEB.
The PEB considered the applicant's status post dislocation of his left
shoulder in January 1996.  The PEB found the applicant's functional
limitations in maintaining the appropriate level of strength and mobility
of minor hand and arm, caused by dislocation of his left shoulder, made the
applicant unfit to perform the duties of his grade and MOS.  The PEB noted
that his condition occurred in the line of duty, not due to his own
misconduct.  The PEB awarded a disability rating of less than 30 percent.

7.  The applicant did not concur with the findings and recommendation made
by the PEB.  In the applicant's rebuttal to the PEB, dated 6 April 1998, he
stated that he was unable to get his x-rays in time to mail them, so he was
sending his x-rays by priority mail on 6 April 1998.  On 7 April 1998, he
would be faxing copies of his two doctors' findings.  The applicant also
stated that as he tried to explain at the PEB hearing, his arm does
dislocate when he tries to lift certain objects and does cause him a great
deal of pain.

8.  On 19 May 1998, the applicant elected to be transferred to the Retired
Reserve, with entitlement to apply for retirement benefits upon reaching
age 60.

9.  On 26 August 1999, the 89th Regional Support Command issued Orders
238-1 reassigning the applicant to the Retired Reserve based on his medical
disqualification in the rank of sergeant first class, pay grade E-7,
effective 26 August 1999.

10.  The applicant's Retirement Summary Points Worksheet, shows his records
were changed on 23 September 1999 and shows he was credited with 24 years
for Reserve Retirement.

11.  On 18 November 1999, the Chief, Personnel Management Division, USAR
Command, advised the applicant's attorney that the applicant was given the
option to transfer to the Retired Reserve pursuant to Title 10, USC,
section 1209, with entitlement to apply for retirement benefits at age 60
or to be discharged, with entitlement to disability severance pay pursuant
to Title 10, USC, section 1212.  There were no other options, real or
implied, that could be afforded the applicant.  The Chief, also states that
the 89th Regional Support Command issued orders on 26 August 1999
reassigning the applicant to the Retired Reserve, per the applicant's
election of option form.  Applicable Army regulations provide that members
of the Retired Reserve who are removed from an active Reserve status by
board actions, such as a PEB, are ineligible for further reassignment to
the Ready Reserve.  The Chief, also stated that the applicant would not be
separated from his military technician position until 30 days after he was
eligible for an unreduced annuity on 11 June 2009.

12.  The applicant submits copies of his VA Monthly Compensation letter
that shows, starting 1 March 1997, a change to his monthly compensation
because his combined evaluation rating was increased to 40 percent.

13.  The applicant will reach his 60th birthday on 11 June 2009.

14.  Army Regulation 635-40, paragraph 3-1, provides that the mere presence
of impairment does not, of itself, justify a finding of unfitness because
of physical disability.  In each case, it is necessary to compare the
nature and degree of physical disability present with the requirements of
the duties the member reasonably may be expected to perform because of his
or her office, rank, grade or rating.  This regulation also specifies that
Soldiers with a disability rating of less than 30 percent and with less
than 20 years of service, separation with severance pay was required.

15.  Title 10, USC, section 1209, specifies that any member of the armed
forces who has at least 20 years of service and who would be qualified for
retirement but for the fact that his/her disability is less than 30
percent, may elect, instead of being separated, to be transferred to the
inactive status to receive retired pay at age 60.

16.  Title 10, USC, section 1212, specifies that upon determination that a
member is unfit to perform the duties of the member's office, grade, rank,
or rating because of physical disability incurred while entitled to basic
pay the member may be separated with entitlement to disability severance
pay.

17.  Title 10, USC, section 1212, also states that disability severance pay
is calculated by multiplying the Soldier's years of service, times twice
the Soldier's daily monthly basic pay.  This section further states that
the amount of disability severance pay received under this section shall be
deducted from any compensation for the same disability to which the former
member of the armed forces or his dependents become entitled under any law
administered by the VA.



DISCUSSION AND CONCLUSIONS:

1.   The applicant's military service was interrupted after it was
determined that his condition had deteriorated to a point where he was
rendered functionally unfit to perform the duties of his grade and MOS.

2.  The applicant appeared before a PEB and he was awarded a disability
rating of less than 30 percent.  He was given two options.  He could accept
disability severance pay and forfeit his Reserve retirement or he could be
placed in an inactive Reserve status and receive Reserve retired pay at age
60 by forfeiting his disability severance pay.

3.  The applicant contends that he elected to transfer to the Retired
Reserve to keep his job as a dual status civil service and that he has now
been advised that he should have been given a medical discharge.  This
contention has been noted; however, after having been provided the two
options, he chose the Retired Reserve.

4.  In the absence of information to the contrary, it is concluded that the
applicant’s separation for retirement for physical disability was correct
and in accordance with applicable laws and regulations.  While the
applicant rebutted the PEB's findings and recommendation on 6 April 1998,
on 19 May 1998 he elected to transfer to the Retired Reserve and was
transferred effective 26 August 1999.

5.  It is also noted that the applicant submitted with his application a
copy of his reassignment orders for the Retired Reserve dated 26 August
1999; therefore, he was notified of his placement in the Retired Reserve.

6.  It is also noted that if the applicant's request was to be approved, it
may not provide the benefits he believes a medical discharge with severance
pay would bestow.  A Reservist assigned to a troop program unit as a
drilling Reservist normally does not have much active duty credit.  Since
disability severance pay is based on a formula which uses years of service
as a multiplier, the amount of disability severance pay the applicant would
have received probably would not have been a considerable amount.  But even
the limited amount he would have been entitled to would have had to be
reduced by the money he has received and will receive from the VA.  He
cannot be compensated twice for the same disability.

7.  Records show the applicant should have discovered the alleged injustice
now under consideration on 26 August 1999, the date of his transfer to the
Retired Reserve; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 25 December 2002.
However, 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

__RTD___  __LVB___  _CLG __  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.




                                  __Curtis L. Greenway ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011508                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/06                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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