RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 December 2005
      DOCKET NUMBER:  AR20050002459


      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 T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 that he be reinstated to his status as a member
of the United States Army Reserve (USAR) at the time that he signed his
Physical Evaluation Board (PEB) Proceedings; and that he be afforded the
opportunity to have a formal board, or paid the benefits that he has been
deprived.

2.  The applicant states that he was awarded a 10 percent disability rating
by the PEB and that he was subsequently denied military retirement and/or
severance pay.  He states that he believed that he had 18 years of
creditable service towards a USAR retirement at the time that his commander
determined that his injuries that were incurred in the line of duty left
him too disabled to perform his military duties.  He states that his
commanding officer (CO) was compelled to initiate medical separation
proceedings and, as a result of his CO's actions, he underwent a Medical
Evaluation Board (MEB).  He states that the MEB determined that he did not
meet medical retention standards and his case was referred to a PEB.  He
states that, after reviewing his medical packet, an informal PEB found that
he was disabled and awarded him a 10 percent rating for his disability.  He
states that under PEB regulations, he would have been entitled to severance
pay with any rating under 30 percent and that for inexplicable reasons, he
waived his rights to a formal PEB hearing which would have afforded him the
opportunity to appeal the findings of the informal PEB; to present new
medical evidence; to present sworn testimony; and to have counsel assist
him in convincing the board to increase his rating.

3.  The applicant states that a closer look at page 2 of his DA Form 199
[Physical Evaluation Board (PEB) Proceedings] suggests that he did not
waive any right to a formal board and that he actually checked the block
that indicated that he was requesting a formal hearing and personal
appearance.  He states that he also wrote on his DA Form 199 that he had
over 15 qualifying years and that he was electing to go to an early
disability retirement.  He states that the elections made on his DA Form
199 are clearly inconsistent and that neither the PEB Liaison Officer nor
the PEB sought to clarify the inconsistency.  He states that the request
for an early disability retirement implies that he wanted more than
severance, which he was not going to succeed in getting unless he had a
chance to appear before the PEB.  He states that the failure of the PEB
Liaison Officer and the PEB to notice and correct his error resulted in a
severe injustice.  He goes on to state that shortly after receiving the
results of the PEB, he waived his rights to severance pay under the
mistaken belief that he could establish that he had over 20 years of
creditable service toward USAR retirement and that, to this day, he remains
short of the necessary qualifying years of service for USAR retirement.
4.  He states that the PEB Liaison Officer and the PEB committed an error
or injustice upon him by failing to clarify his election to the formal
hearing on the DA Form 199 and he was denied his due process rights under
Army Regulation
635-40.  The applicant goes on to quote a paragraph contained in Army
Regulation 635-40 and he states that given the amount of time that he had
invested in the USAR, there is absolutely no excuse for the PEB Liaison
Officer or the PEB to consider the DA Form 199 valid as he had nothing to
lose and everything to gain by appearing before a formal PEB.  He states
that, at a minimum, he would have received competent legal advice from the
PEB counsel, a Judge Advocate General attorney capable of rendering
competent legal advice about the disability system and his option of
receiving severance pay.  He states that there may have been other options
of which he was not aware such as Army Regulation 635-40, paragraph 3-10
providing Soldiers with certain limitations to extend their military
careers in order to fulfill retirement eligibility requirements.  The
applicant concludes by stating that there may have been options for him to
utilize to prolong his career and recoup his retirement.

5.  The applicant provides in support of his appeal portions of Army
Regulation 635-40; a copy of a memorandum dated 31 July 1998, from his CO,
addressed to the Commander, 94th Regional Support Command, Surgeon's
Office, indicating that his ability to perform as a chemical operations
analyst was limited; a copy of his MEB Proceedings and recommendation; a
copy of the informal PEB Proceedings; and a copy of a memorandum dated 7
April 1999, from the United States Army Physical Disability Agency,
addressed to him, noting his disagreement with the findings of the PEB.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 15 March 2000.  The application submitted in
this case was received on 16 February 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.  After completing 2 years, 11 months, and 24 days of net active service
in the Regular Army, he enlisted in the USAR on 8 December 1980, in the pay
grade of E-4.  He remained a member of the USAR through a series of
continuous reenlistments.

4.  The applicant was on active duty for training and he was assigned to
the 383d Military Intelligence Company, Fort Devens, Massachusetts, on 18
July 1995, when he was examined at the Troop Medical Clinic after
sustaining an injury to his left shoulder, left knee, and neck.  The
Statement of Medical Examination and Duty Status (DA Form 2173) that was
completed at the time of the incident shows that the applicant stated that
while he was walking around a vehicle, he slipped on some wet logs and fell
to the ground.  His injury was considered to have been incurred in the line
of duty.

5.  On 6 January 1996, the applicant was attending inactive duty training
when he walked to formation and slipped on snow packed ice pavement,
falling down backwards and landing on his backside.  The DA Form 2173 that
was completed at the time of the incident indicates that the applicant was
sent to Deaconess-Nashoba and treated for his injury and then released.
The DA Form 2173 also indicates that his injury was considered to have been
incurred in the line of duty.

6.  On 8 August 1998, the applicant was placed on a permanent physical
profile with multiple restrictions as a result of his being diagnosed as
having cervical spondylosis.

7.  An MEB convened on 30 October 1998, to evaluate the applicant's
condition and to determine whether or not he met retention standards in
accordance with Army Regulation 40-501.  The board determined that the
applicant's medical condition did not meet retention standards in
accordance with Army Regulation 40-501 and recommended that he be referred
to a PEB for evaluation and recommendation.  On 27 November 1998, the
applicant initialed the MEB Proceedings indicating that he had been
informed of the approved findings and recommendation of the board; and that
he agreed with the board's findings and recommendation.

8.  On 8 March 1999, a PEB convened to determine the applicant's fitness
for retention in the USAR.  The PEB described the applicant's condition as
chronic neck pain with imaging findings of C5-C6 posterior osteophytes with
impingement on thecal sac.  No neurological deficit was noted.  The PEB
found that his medical condition and the disability from it were the
proximate result of

performing duty.  The PEB recommended a 10 percent disability rating and
determined that the proper disposition would be separation with severance
pay.  The DA Form 199 indicates that the members of the board suggested
that since he had completed 15, but less than 20 years of qualifying
service for Reserve retirement, he may wish to consider requesting
continuance in an Active Reserve status in accordance with Army Regulation
635-40, paragraph 8-7.  The applicant was informed that alternatively, he
may elect either separation with severance pay or early qualification for
retired pay at age 60.  On 23 March 1999, the applicant signed the DA Form
199 indicating that he did not concur with the PEB's findings and
recommendation and that he desired to waive a formal hearing.  Across the
bottom of the DA Form 199, he wrote "However, I have over 15 qualifying
years and elect to go for the early disability retirement."

9.  The applicant's PEB election was forwarded to the Physical Disability
Agency (PDA) for review on 25 March 1999.  Forwarded along with his
election was a statement from an individual at Walter Reed Army Medical
Center, requesting that the applicant be informed to submit the official
application for Temporary Early Retirement Authority (TERA) through
administrative and command channels and to provide the PDA a copy of the
application.

10.  On 7 April 1999, the PDA notified the applicant that his disagreement
with the findings of the PEB had been noted and that his entire case file
had been reviewed.  The PDA informed him that his case was properly
adjudicated by the PEB, which correctly applied the rules that govern the
Physical Disability Evaluation System in making its determination.  He was
informed that the PEB's findings and recommendations were supported by
substantial evidence and that they were therefore affirmed.  In the
notification, the applicant was informed that he may be eligible for
medical care through the Department of Veterans Affairs (DVA) if they
determine that his injury is service-connected and that he may apply for a
disability rating through the DVA for any of his service-connected
illnesses or injuries.

11.  On 15 July 1999, orders were published discharging the applicant from
the USAR under the provisions of Army Regulation 635-40, with an effective
date of 31 July 1999.  The orders reflect his percentage of disability as
10 percent and indicate that he was authorized disability severance pay.
The applicant's commander was notified that he should take action to ensure
that the applicant was paid severance pay in accordance with the provisions
of Army Regulation 37-104-3, chapter 4 and Department of Defense Pay
Manual, chapter 4, section D-40431.

12.  The applicant submitted a personnel action dated 25 July 1999, through
his chain of command, to the Commander, Army Reserve Personnel Command,
requesting that he be allowed to retire based on years of service.

13.  On 20 October 1999, orders were published by the Chief, Physical
Disability Branch, revoking the 15 July 1999 discharge orders pertaining to
the applicant.

14.  The applicant was assigned to the 372 Military Intelligence Company on
15 March 2000, when orders were published releasing him from his assignment
and assigning him to the Retired Reserve with an effective date of 15 March
2002.  The orders indicate that the applicant was being released from his
assignment due to a medical disqualification for retention and that he is
entitled to early qualification for retired pay.

15.  A review of the available records fails to show that the applicant
ever applied to the DVA for medical care or a disability rating subsequent
to his transfer to the Retired Reserve.

16.  Section 4403 of the National Defense Authorization Act (NDAA) for
Fiscal Year 1993 provided the Secretary of Defense a temporary additional
force management tool with which to effect the drawdown of military forces
through 1999 (TERA).  During the active force drawdown period (23 October
1992 and ending on 1 October 1999, later extended to 31 December 2001), the
Secretary of the Army could authorize an enlisted member with at least 15
but less than 20 years of creditable service a length of service
retirement.  While the Army did not broadly apply this program beyond
Fiscal Year 1998 (that is, the U. S. Total Army Personnel Command did not
issue an implementing message to the field), apparently TERA was offered to
soldiers with more than 15 but less than 20 years of active service who
would otherwise be discharged for physical disability with severance pay.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant's contentions have been noted; however, they are
unsubstantiated by the evidence of record.  The evidence of record shows
that he did, in fact, waive consideration of his case by a formal PEB.  The
records also show that he requested early qualification for retired pay,
which he received in orders dated 15 March 2000.  Therefore, he is not
entitled to severance pay as, in accordance with his own request, he is
eligible to receive retired pay at age 60.  Consequently, there is no basis
for reinstating the applicant in the USAR

3.  The applicant's request regarding reinstatement in the USAR for the
purpose of presenting matters to a formal PEB in an attempt to obtain a
higher disability rating is pointless.  He has already been placed in the
Retired Reserve with entitlement to early qualification for retired pay.
Additionally, he has failed to submit evidence to show that the 10 percent
disability rating that was assigned to him at the time of the PEB was in
error.

4.  Correcting the applicant's records to show that he was discharged by
reason of physical disability and awarding him severance pay at this point,
would only be jeopardizing the retired pay that he is now eligible to
receive at age 60.  Therefore, there is no basis for granting relief in
this case.

5.  Additionally, the applicant's contention that the PEB Liaison Officer
and the PEB committed an error or injustice upon him by failing to clarify
his election is without merit.  The records show that the applicant was
properly informed to submit the official application for TERA through
administrative and command channels and to provide the PDA a copy of the
application.

6.  It does not appear that the applicant has been deprived of any benefits
by the Army and he has provided no evidence to show that he has ever
applied to the DVA for benefits as he has been previously informed.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 March 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 14 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

__jtm___  __ml____  __rgs___  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.



                                        John T. Meixell
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002459                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  177  |108.0000/DISABILITY RETIREMENT          |
|2.  179                 |108.0200/PERCENTAGE OF DISABILITY       |
|3.  338                 |136.0000/RETIREMENT                     |
|4.  343                 |136.0500/EARY RETIREMENT                |
|5.                      |                                        |
|6.                      |                                        |


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