RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          23 November 2004
      DOCKET NUMBER:  AR2004104891


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert J. Osborn, II          |     |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 discharge for disability
with severance pay be corrected to show that he was retired as a result of
a physical disability.

2.  The applicant states, in effect, that he was denied reenlistment
because he could not pass a reenlistment physical examination.  He was led
to believe that he had no choice other than to be separated due to a
disability with severance pay.  His father (a retired officer) advised him
that he should have been retired, due to a service-related injury.

3.  The applicant provides in support of his request a statement in which
he indicates his medical record will show he was crushed between 56 tons of
metal (an M88A1 Recovery Vehicle and a 5-ton, M60A3 tank engine).  He had a
physical profile as a result of the injury and could not pass the Army
Physical Fitness Test.  He also could not reenlist or pass a physical
examination for a disability separation.  His chain of command advised him
that he had no alternative other than the separation for disability with
severance pay.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 19 August 1996.  The application submitted in this case is
dated 1 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.  Prior to the period of service under review, the applicant served
honorably in the Regular Army (RA) from 12 February 1987 to 5 July 1989,
and from 6 July 1989 to 17 July 1994.  On 18 July 1994, the applicant
reenlisted in the RA for
2 years, his previous military occupational specialty (MOS) 63E (Tank
Systems Mechanic) and in pay grade E-5.

4.  A Medical Evaluation Board (MEB) Medical Record, dated 8 April 1996,
shows the applicant was injured at Fort Carson, Colorado on 27 March 1990
when he was pinned between a 5-ton tank engine and transmission and a 56-
ton tank recovery vehicle.  The tank engine and transmission struck the
applicant against his back, buttocks, and thighs, with the spade resting
against his lower abdomen.  He was pinned between the equipment for
approximately 10 minutes, until he was freed and medically evacuated to
Evans Community Hospital at Fort Carson.  He remained in the hospital from
27 March to 30 March 1990.  He was unable to extend his left hip or his
left knee for approximately 1 month, due to pain.  Gradually, he was able
to accomplish movement without physical therapy.

5.  The MEB shows that, on 25 October 1995, the applicant was referred to
the Orthopedic Surgery Department after he complained of experiencing low
back pain and difficulty arising from a kneeling position at his work site.
 At that time, the applicant complained of a 3-year history of bilateral
lower extremity paresthesias (numbness, tingling, increased sensitivity)
when seated in a stationary position for more than 10-15 minutes.  He had
to shift positions or stand.  His pain worsened when squatting for over 10-
15 minutes and when standing for over 10-15 minutes.  He was compliant with
the recommendations of physical therapy, but received no relief from the
lower back pain with therapy.

6.  The MEB further showed that laboratory x-ray data indicated the
applicant suffered from occult spina bifida at the level of the fifth
lumbar vertebra and mild apex right degree scoliosis.  The diagnosis was
"mechanical low back pain, inflammation of T12/L1 interspinous ligaments
and L1 and L3 paralumbar ligamentous area."  The examining official
believed the applicant's complaints resulted in an inability to perform his
MOS and would significantly limit his ability to seek further employment in
the military or in the civilian sector.  The applicant was determined not
to meet retention standards and the recommendation was that he be referred
to a Physical Evaluation Board (PEB).  On 30 May 1996, the applicant
concurred with the findings and recommendations of the MEB.

7.  On 14 June 1996, a PEB found the applicant was physically unfit for
further military service and recommended a combined rating of 10 percent.
On 18 July 1986, the applicant concurred with the findings of the PEB and
waived a formal hearing of his case.

8.  On 19 August 1996, the applicant was separated from the service with an
honorable discharge under the provisions of chapter 4, Army Regulation 635-
40. He received $30,636.00 for disability severance pay.  He had completed
a total of 9 years, 6 months and 8 days of active military service.

9.  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.  Section 1203 provides for the
physical disability separation of a member who has less than 20 years
service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly separated in accordance with regulations
then in effect and there is no indication of procedural errors which would
have jeopardized his rights.

2.  The applicant was determined to be physically unfit for further
military service with a disability rating of 10 percent.  In accordance
with Title 10, Section 1203 he was separated with disability separation pay
because he had less than 20 years of service and a disability rating less
than 30 percent.

3.  There is no error or injustice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fe____  __jtm___  __rjo___  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.



                                  Fred Eichorn
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104891                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041123                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19960819                                |
|DISCHARGE AUTHORITY     |AR635-40                                |
|DISCHARGE REASON        |A93.21                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.9321                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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