RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR20040011519


       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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 correction of his records to show that he
completed 20 years of active service instead of 18 1/2 years.

2.  The applicant states that he should be granted a waiver because service
members with 18 years or more were automatically locked in for 20 years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and separation orders in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 August 1987, the date he was permanently retired by reason of
physical disability.  The application submitted in this case is dated
23 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 records show he entered active duty (AD) on
17 March 1969.  He continued to serve through a series of continuous
reenlistments.  He was promoted to master sergeant (MSG/E-8) on 13 October
1985 with an effective date of 1 November 1985.

4.  On 29 January 1987, the applicant was seen in the emergency room at
Raymond W. Bliss Army Community Hospital with the sudden onset of severe
burning substernal chest pain.  The applicant was admitted to the hospital.

5.  On 27 February 1987, the applicant underwent a Medical Evaluation Board
(MEB) medical evaluation.  He was diagnosed as having Atherosclerotic heart
disease manifested by prior inferoposterior myocardial infarction currently
asymptomatic and herniated nucleus pulposus with radiculopathy.  He was
given a physical profile of 113111.



6.  On 5 May 1987, the applicant appeared before an MEB that determined his
conditions was incurred while entitled to base pay and did not exist prior
to service.  His diagnosis of atherosclerotic heart disease was not
permanently aggravated by service but his herniated nucleus pulpous L5-S1,
with radiculopathy was.  He indicated that he desired to continue on AD
under the provisions of Army Regulation 635-40.  He concurred with the
MEB's findings and recommendation on 6 May 1987.  He was referred to a
physical evaluation board (PEB).

7.  On 19 May 1987, the applicant's case was considered by an informal PEB.
 The PEB found the applicant unfit and recommended a combined rating of
   40 percent and that he be permanently retired from the service.  The
applicant concurred and waived a formal hearing of his case.  In remarks
made by the PEB: "(1) Soldier has applied for continuance on AD.  The
recommended disposition applies if Soldier's application for continuance is
denied; (2) The PEB finds that the profile restrictions applied to the L3
profile for back problems precludes the return to full duty required for
the commander's evaluation of the Soldier's ability to perform after
myocardial infarction; (3) Although some change in the Soldier's medical
condition may be anticipated, for administrative adjudication purposes the
disability is considered to have stabilized at the degree of severity
indicated.  Therefore, permanent retirement is recommended; and   (4) Under
the provisions of paragraph 2-1, Army Regulation 635-40, the Soldier's
condition, supported by medical documentation herein, is considered
sufficient evidence of physical unfitness."

8.  On 26 May 1987, the applicant concurred with the results of the PEB and
waived a formal hearing of his case.

9.  On 3 June 1987, the PEB's finding of the applicant's unfitness was
approved. On the same date, his case was forwarded for consideration of his
application to remain on AD, as an exception to policy.

10.  On 2 July 1987, the applicant's request to remain on AD under the
provisions of Army Regulation 635-40 was not favorably considered and the
applicant was so notified.

11.  On 7 August 1987, the applicant was retired by reason of physical
disability with a combined rating of 40 percent, with an effective date of
placement on the Retired List of 8 August 1987, in the rank of MSG.

12.  The applicant's records contain a copy of his DA Form 3713 (Data for
Retired Pay), dated 17 July 1987, which shows that he was credited with 19
years, 4 months, and 21 days of active Federal service for disability
retirement.
13.  Item 12c (Net Active Service This Period) of his DD Form 214 shows the
entry "10 05 27" (10 years, 5 months, and 27 days) and item 12d (Total
Prior Active Service) shows the entry "07 10 24" (7 years, 10 months, and
24 days) for a combine total of 18 years, 4 months, and 21 days of active
Federal service.

14.  Information provided by the Defense Finance and Accounting Service
(DFAS), on 17 August 2005, revealed that the applicant is currently being
paid disability retirement for 18 years, 4 months, and 21 days of active
Federal service.

15.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status
and duty limitations insofar as duty is affected by the Soldier’s status.
A decision is made as to the Soldier’s medical qualifications for retention
based on the criteria in AR 40-501, chapter 3.  If the MEB determines the
Soldier does not meet retention standards, the board will recommend
referral of the Soldier to a PEB.

16.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

17.  Title 10, US Code, chapter 61, provides for the disability retirement
or separation of a member who is physically unfit to perform the duties of
his/her office, rank, grade, or rating because of a disability incurred
while entitled to basic pay.

18.  Title 10, US Code, section 1201, provides for the physical disability
retirement of an unfit member who has at least 20 years of service or a
disability rating of at least 30 percent.




19.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  It states that any Soldier who had
completed 18 or more years of active Federal service would not be
involuntarily discharged or released from active duty without approval from
the U.S. Army Human Resources Command (AHRC)-Alexandria.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant appeared before an MEB and PEB
and was found unfit for duty and was permanently retired by reason of his
physical disabilities.  His condition was supported by medical
documentation which was considered sufficient evidence of physical
unfitness.

2.  The evidence shows that despite the applicant's desire to remain on AD,
his request was not favorably considered by Headquarters, Department of the
Army (HQDA).

3.  The applicant's retirement for physical disability reasons was approved
and he was placed on the Retired List on 8 August 1987, in the rank of MSG.
 On his retirement date, he had completed 18 years, 4 months, and 21 days
of active Federal service.

4.  During the processing of this case the applicant's Data for Retired Pay
was reviewed.  This form indicated that he had completed 19 years,
4 months, and 21 days of active Federal service; however, his service was
incorrectly calculated and the total of his service should have shown "18
years, 4 months, and 21 days" instead of "19 years, 4 months, and 21 days."

5.  Verification was made with DFAS that the applicant's retired pay is
based on the correct amount of service, 18 years, 4 months, and 21 days.

6.  The evidence shows that although the applicant had completed more than
18 years of active Federal service, he was not involuntarily discharged or
released from AD without approval from AHRC-Alexandria.

7.  Following his PEB, the applicant concurred with the board's findings
and recommendation and waived a formal hearing of his case.  He was placed
on the Retired List with less than 20 years of active Federal Service and
was not entitled to remain on AD until he completed 20 years of active
Federal service.  Therefore, there is no basis to correct his records to
show that he was entitled to a waiver to remain on active duty to complete
20 years of active Federal service.


8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 August 1987; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 August 1990.  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

___sk ___  ___rtd___  ___bje__  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.




                                  __________Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011519                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19870807                                |
|DISCHARGE AUTHORITY     |AR 635-40  paragraph 4-24e(1)           |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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