RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 DECEMBER 2004
      DOCKET NUMBER:  AR2004105092


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane Armstrong               |     |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.  In effect, the applicant requests that his 15 July 1985 discharge be
voided and that he be transferred to the Retired Reserve with entitlement
to retirement pay.

2.  The applicant states that he was discharged with disability severance
pay, rather than waiting to draw retirement pay at age 60.  He made that
decision based on having open-heart surgery in 1979 for quadruple cardiac
bypass.  In early 1985 his doctor told him that he would more than likely
need a repeat of that surgery, giving him more time to live, perhaps three
years or more.  He states that he was ill advised by his physicians who in
1985 indicated that he had only several years to live.  Based on erroneous
medical opinion, he opted for a disability buyout rather than retirement at
age 60.  The severance pay would help him to clean up his finances and
spend quality time with his two sons.  He had his second open-heart surgery
on 23 September 1985, retired from his civilian job in December 1988
because of heart problems, and became disabled under social security in
1994.  He has a pacemaker, had several heart catheterizations, three or
more angioplasties and two stints in place, and was chosen for a research
program that has worked well for him.  He requests that the severance pay
that he received in 1985 be converted to regular retirement at age 60 on
 21 July 1993 with retirement pay effective on that date, using funds from
severance pay to buy back [his retirement], and that he receive retirement
pay and any other benefits afforded a 20 year retiree, such as medical care
and survivor benefit annuity.

3.  The applicant provides a copy of a 17 June 1985 letter forwarding
orders discharging the applicant with severance pay, a copy of those
orders, a copy of Physical Evaluation Board (PEB) and Medical Evaluation
Board (MEB) proceedings, a copy of the notification of eligibility for
retired pay at age 60       (20 year letter), a copy of a survivor benefit
election certificate, a copy of the applicant's chronological statement of
retirement points, a copy of the applicant's 23 August 1957 DD Form 214
(Report of Transfer or Discharge), a copy of his   24 August 1953
enlistment record, and a copy of a letter from his attorney.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel's requests and statements mirror those of the applicant, also
indicating that at that time in 1985 the applicant was advised that his
prognosis was poor and that if lucky, he would have three more years to
live after the 1985 surgery, and that with two college-age children the
applicant believed that the severance pay option was more realistic and
beneficial; consequently, he retired from his civilian job and chose the
severance pay buyout.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 July 1985.  The application submitted in this case is
dated           4 March 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.  The applicant was on active duty with the Air Force for four years,
spent another four years in the Air Force Reserve, and in 1965 enlisted in
the Army Reserve, continuing until his discharge in 1985, attaining the
rank of command sergeant major.  The documents that he submits show that he
had in excess of 20 qualifying years of service for retired pay at age 60.


4.  A 30 November 1984 medical record shows that the applicant was injured
on 2 October 1983 when he was hit by a spring loaded door in the upper back
and base of his skull.  The examining physician diagnosed his condition as
chronic neck and left trapezius pain of unknown etiology, and recommended
that he be presented to a PEB for disposition.  On 6 February 1985 an MEB
recommended that he be referred to a PEB.  The applicant agreed.

5.  On 19 February 1985 a PEB determined that his condition prevented his
satisfactory performance of duty as a command sergeant major, that he was
physically unfit, and recommended that the applicant be separated from the
service with severance pay with a 20 percent disability rating.  The PEB
proceedings (DA Form 199) contained the statement, "In that you are unfit
to perform assigned duties in your grade and specialty, the proper
disposition at this time is separation from the service with severance pay.
 However, you are advised that any military member who has at least 20
years of service as computed under Section 1332, Title 10, U.S. Code, and
who is qualified for retirement under Chapter 61, but for the fact that a
disability rating is less than 30% may elect, instead of being separated
under Chapter 61, to be transferred to the inactive list under the
provisions of Section 1331-37, Chapter 61, Title 10, U.S. Code and receive
retired pay under the provisions of Chapter 71, title 10, upon becoming 60
years of age.  It is reemphasized that you do not have to accept severance
pay at this time.  If you so elect, you can request permanent retirement at
age 60 with a 20% service connected disability."

5.  The applicant concurred with the finding and recommendation of the PEB,
that is, that he be separated with severance pay with a 20 percent
disability rating.  He was discharged from the Army Reserve on 15 July
1985.

6.  In an appeal to a Member of Congress (MC) on 9 July 2004, the applicant
stated that he was 71 years old, and with his and his wife's medical
history, money had become a major factor in their lives.  He stated that
they had maximized their credit cards and were facing bankruptcy.  He
stated that he could not afford his status and needed his Reserve
retirement.

7.  United States Code, Title 10, Section 1209, states in effect 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 disability is
less than 30 percent under the standard schedule of rating disabilities in
use by the Department of Veterans Affairs at the time of the determination,
may elect, instead of being separated under this chapter, to be transferred
to the inactive status list and, if otherwise eligible, to receive retired
pay upon becoming 60 years of age.

DISCUSSION AND CONCLUSIONS:

1.  The applicant made a decision in 1985 to accept severance pay,
notwithstanding the fact that he had the option to not do so but wait until
age 60 and request permanent retirement with a 20 percent disability
rating.  This, neither he nor counsel disputes.

2.  He now, almost 20 years later, has had a change of mind, obviously
because of his present financial difficulties, requesting retirement pay
retroactive until 1993, when he became 60 years of age.  This problem
apparently did not exist in 1993.

3.  Unfortunately, the applicant had a choice and he made one.  His current
status, financial or otherwise, does not demonstrate any error or injustice
on the part of the Army.  His request to transfer to the Retired Reserve
with retroactive retirement pay and allied benefits, to accommodate him is
not warranted.

4.  The applicant's request that his 15 July 1985 discharge be voided and
that he be transferred to the Retired Reserve with entitlement to
retirement pay is denied.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 July 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         14 July 1988.  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

___JP___  ___LE___  __DA ___  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.




                                  _____ Jennifer Prater______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105092                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041214                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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