RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                OCTOBER 26, 2004
      DOCKET NUMBER:        AR2004103598


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Curtis Greenway               |     |Member               |
|     |Ms. Eloise Prendergast            |     |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 he be given credit for 20 years
of total active service like he was when he retired from the Army by reason
of physical disability.  He further requests, in effect, that he be legally
qualified for Concurrent Retirement and Disability Pay (CRDP).

2.  The applicant states that if he was legally qualified for 20 years of
active duty compensation when he retired in 1983, then he should be legally
qualified for “concurrent receipt benefits” today.

3.  The applicant provides in support of his application, a copy of orders
relieving him from his assignment and duty dated 1 September 1983; a copy
of his Certificate of Release or Discharge (DD Form 214) for the period
covering 7 March 1966 through 15 September 1983; and a copy of his DD Form
214 for the period covering 14 September 1953 through 13 September 1955.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 15 September 1983.  The application submitted in this case is
dated 22 January 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 limitation 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.  He was inducted into the Army in Columbia, South Carolina, on 14
September 1953 and he successfully completed his training as a postal
clerk.  He was honorably released from active duty on 13 September 1955,
under the provisions of Army Regulation 615-360, at the expiration of his
term of service and he was transferred to the United States Army Reserve to
complete his 8-year service obligation.  He had completed 2 years of total
active service.





4.  On 24 February 1966, he accepted an appointed as a Reserve commissioned
officer in the rank of first lieutenant.  On 28 February 1966, orders were
published ordering him to active duty effective 7 March 1966, in the rank
of captain.  He went on to successfully complete his training as a dental
officer.

5.  He continued to be promoted through the ranks and on 11 July 1983,
while the applicant was serving in the rank of colonel, a Medical
Evaluation Board (MEB) convened to determine the applicant’s fitness for
retention in the Army.  The MEB found the applicant unfit for duty based on
arteriosclerotic heart disease, low back pain and a history of fracture of
the fifth metacarpal, right hand.  The MEB recommended that he be referred
to a Physical Evaluation Board (PEB).

6.  A PEB convened on 19 July 1983, to determine the applicant’s fitness
for retention on active duty.  The PEB recommended that he be assigned
disability ratings of 30 percent for arteriosclerotic heart disease, with
anteroseptal infarction and 10 percent for degenerative disc disease.  The
PEB determined that based on a review of the objective medical evidence of
record, the applicant’s medical and physical impairments prevented
reasonable performance of duties required by rank and military specialty.
The PEB found that the applicant was physically unfit for retention on
active duty and recommended permanent disability retirement with a combined
rating of 40 percent.

7.  The applicant concurred with the recommendation made by the PEB on
10 August 1983.  Accordingly, on 15 September 1983, he was retired under
the provisions of Army Regulation 635-40, based on a permanent physical
disability. He was placed on the permanent disability retired list in the
rank of colonel on 16 September 1983 and he was credited with 19 years, 6
months and 10 days of total active service.

8.  On 1 November 1989, this Board denied the applicant’s request for an
increase of his disability rating to 100 percent.

9.  Army Regulation 635-40 provides that the medical treatment facility
commander with the primary care responsibility will evaluate those referred
to him and will, if it appears as though the member is not medically
qualified to perform duty or fails to meet retention criteria, refer the
member to a medical evaluation board.  Those members who do not meet
medical retention standards will be referred to a PEB for a determination
of whether they are able to perform


the duties of their grade and military specialty with the medically
disqualifying condition.  For example, a noncommissioned officer who
receives above average evaluation reports and passes Army Physical Fitness
Tests (which have been modified to comply with the individual’s physical
profile limitations) after the individual was diagnosed as having a medical
disqualification may be found to be fit for duty.  The fact that the
individual has a medically disqualifying condition does not mandate the
person’s separation from the service.  Fitness for duty, within the
parameters of the individual’s grade and military specialty, is the
determining factor in regards to separation.  If the PEB determines that an
individual is physically unfit, it recommends the percentage of disability
to be awarded which, in turn, determines whether an individual will be
discharged with severance pay or retired.  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.    In this
regard, the Army rates only conditions determined to be physically
unfitting, thus compensating the individual for loss of a career.

10.  Simply put concurrent receipt means that qualified military retirees
will get paid both their full military retirement pay and their VA
disability compensation.  This recently passed law phases out the VA
disability offset, which means that military retirees with 20 years or more
of service and a 50 percent (or higher) VA rated disability will no longer
have their military retirement pay reduced by the amount of their VA
disability compensation.  To qualify for concurrent receipt you must be a
military retiree with 20 years or more of service and have a service
related disability rating of 50 percent or higher.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record establishes that the applicant was
physically unfit at the time of his separation from the service.  The
applicant provides no evidence that the PEB findings were incorrect.

2.  The contentions set forth by the applicant do not demonstrate error or
injustice in the disability rating assigned by the Army, nor error or
injustice in the disposition of his case by his retirement from the
service.  While the applicant may believe that he is entitled to concurrent
receipt benefits, he has not established through the evidence submitted or
the evidence of record that he is entitled to receive CRDP.




3.  Additionally, the applicant was not credited with 20 years of total
active service at the time of his retirement, as he had not completed 20
years of total active service.  He is receiving retired pay based on the
interruption of his service due to his physical disability, which was
incurred while he was entitled to basic pay.  He was properly credited with
19 years, 6 months and 10 days of total active service and he was not
qualified for Regular Army retirement.  Moreover, he has provided no
evidence to show that the number of years of total active service for which
he was credited is incorrect.

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 this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 September 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 14 September 1986.  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

ep______  js______  cg______  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.




            ____Eloise Prendergast____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004103598                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041026                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  303  |129.0100.0000/SERVICE CREDIT            |
|2.  297                 |128.1400.0000/OTHER PAY                 |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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