RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 October 2005
	DOCKET NUMBER:  AR20050001104 


	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. David S. Griffin

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Patrick H. McGann

Member

Ms. Carol A. Kornhoff

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 military records be corrected to show 20 years and 24 days active service instead of 19 years, 11 months and 7 days.

2.  The applicant states, in effect, that Item 12c (Net Active Service this Period) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 19 March 2000, should read 20 00 24 instead of 19 11 07 and that his retirement orders should also show 20 years and 24 days of service.  The applicant states that he initially enlisted in the Army on 26 February 1982 and remained in the Army until he was placed on the Temporary Disability Retired List (TDRL).  The applicant further states that he needs 20 years active service so that he can be entitled to Concurrent Retirement and Disability Pay (CRDP).

3.  The applicant provides excerpts from his military service records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 19 March 2000, the date he was released from active duty.  The application submitted in this case is dated 3 January 2005.

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 that he initially enlisted on 26 February 1980 for a period of 4 years.  He served continuously until he was released from active duty on 19 March 2000 and placed on the TDRL on 20 March 2000 with a 40 percent disability rating.  He had served 19 years, 11 months and 7 days of active service that was characterized as honorable.  He had 1 month and 7 days of time lost due to confinement.


4.  On 21 August 1981, the applicant was convicted by a special court-martial for assaulting a fellow Soldier, disrespect toward a commissioned officer, failure to obey an order from a commissioned officer, and wrongful possession of marijuana.  His punishment consisted of reduction to private/pay grade E-1, confinement at hard labor for 5 months, and to forfeit $234.00 for 5 months.  

5.  On 10 September 1981, the convening authority suspended all but 3 months of confinement and all but 3 months of the forfeiture of pay.  

6.  The records show that the applicant served his confinement from 21 August 1981 to 6 October 1981, a period of 47 days.

7.  Item 12a (Date Entered AD (active duty) This Period) of the applicant's 
DD Form 214 contained the entry 1980 02 26 (1980 February 26).

8.  Item 12b (Separation Date This Period) of the applicant's DD Form 214 contained the entry 2000 03 19 (2000 March 19).

9.  Item 12c (Net Active Service This Period) of the applicant's DD Form 214 contained the entry 0019 11 07 (19 years, 11 months, and 7 days).

10.  Item 29 (Dates of Time Lost During This Period) of the applicant's 
DD Form 214 contained the entry: “UNDER 10 USC 972: 19810821-19811006”.  This equates to 47 days.

11.  The applicant's medical records, including the results of his Medical Evaluation Board (MEB) and his Physical Evaluation Board (PEB) were not available for the Board to review.

12.  Department of Defense (DOD) Financial Management Regulation 
7000.14-R provides statutory provisions for entitlement, deductions, and collections, and establishes DOD policy on the pay and allowances of military personnel.  Paragraph 010102, Table 1-2 of this regulation states that when an absence is due to confinement of more than 1 day while awaiting trial (if the trial results in conviction) or confinement as the result of a court-martial sentence then the period of service is not creditable service.

13.  Army Regulation 635-5 (Separation Documents) established the standardized policy for preparing and distributing the DD Form 214.  The regulation provides, in pertinent part, that the beginning date of the continuous period of active duty (AD) for which the DD Form 214 is being issued, be entered in item 12a (Date Entered AD This Period) of the DD Form 214.  This regulation 

also provides that the date of separation be entered in item 12b (Separation Date This Period) and that the net service for the period shown is computed by subtracting item 12a from item 12b and then deducting any lost time and non-creditable service after date of discharge.

14.  The Fiscal Year 2004 National Defense Authorization Act provided a 10-year phase-out of the offset to military retired pay due to receipt of Department of Veterans Affairs (DVA) disability compensation for members whose combined disability rating is 50% or greater.  This provision is referred to as Concurrent Retirement and Disability Pay (CRDP).  Members retired under disability provisions (10 U.S. Code chapter 61) must have 20 years of service.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) requires that a Soldier with over 18 but less than 20 years of active service and is referred to a PEB be counseled on their right to request Continuation On Active Duty (COAD).  The Soldier will make his or her election in writing.  

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that Item 12c (Net Active Service this Period) on his DD Form 214 should read 20 00 24 instead of 19 11 07 and that his retirement orders should also show 20 years and 24 days of service.  

2.  Computation of the applicant's period of active duty covered by his 
DD Form 214 shows 20 years and 24 days of service.  The amount of time lost due to confinement, 47 days, is then subtracted and the net service is 19 years, 11 months and 07 days.  Therefore, the entries in item 12c of the applicant's 
DD Form 214 and his retirement orders are correct.

3.  The law establishing CRDP was enacted 4 years after the applicant was placed on the TDRL.  It is the applicant’s stated intent to have his records corrected solely to establish eligibility for CRDP.  In this regard, the Board does not correct properly constituted records just to establish entitlement to a benefit.


4.  The applicant's disability processing package was not available for review.  There is no evidence of the applicant having been counseling concerning his right to request COAD and there is no record of the applicant having requested COAD.  In the absence of evidence to the contrary it is presumed that the Army's administrative processing of the applicant for placement on the TDRL is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 March 2000; therefore, the time for 
the applicant to file a request for correction of any error or injustice expired on 
18 March 2003.  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

___tsk___  ___phm _  ___cak__  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.



______Ted S. Kanamine______
          CHAIRPERSON
INDEX

CASE ID
AR20050001104
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051013
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.

2.

3.

4.

5.

6.