RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 November 2005
      DOCKET NUMBER:  AR20050003542


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Della R. Trimble              |     |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 that he completed 20 years of active service so that he
may be granted Combat Related Special Compensation (CRSC).

2.  The applicant states, in effect, that he has 20 years of service and
that he is eligible to receive CRSC.

3.  The applicant provides a copy of:

      a.  an Enlistment Record that shows the applicant enlisted on 13 May
1948 with Company C, 295th Infantry and was separated on 3 June 1950;

      b.  an Honorable Discharge Certificate from the National Guard of
Puerto Rico;

      c.  his DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge) with an effective date of 2 January 1969 that shows
the applicant's active service during the period from 24 January 1967 to 2
January 1969;

      d.  a letter, dated 3 May 2004, from the U.S. Army Physical
Disability Agency (USAPDA)/Combat Related Special Compensation, Alexandria,
Virginia, that approved the applicant's application for CRSC, determined
that the applicant's total combat related disability was 60 percent, and
requested additional documentation for four additional disabilities; and

      e.  a letter, dated 24 November 2004, from the USAPDA that denied the
applicant's request for reconsideration for CRSC due to the applicant not
having 20 years of active service.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
2 January 1969, the date he was placed on the Temporary Disability Retired
List (TDRL).  The application submitted in this case is dated 4 January
2005 and was received on 24 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.  The applicant's military records show that he initially enlisted in the
Army National Guard on 13 May 1948.  During this enlistment he had two
periods of active federal service/active duty for training: one from 25
July 1948 to 8 August 1948; and one from 24 July 1949 to 7 August 1949.  He
received an honorable discharge on 3 June 1950.  He had completed 2 years
and 21 days of service, of which 28 days was active service.

4.  On 15 June 1950, the applicant enlisted in the U.S. Army for a period
of
3 years.  He served continuously until 23 January 1967.  He had completed
16 years, 7 months, and 9 days of active service that was characterized as
honorable.  The highest pay grade held by the applicant was master
sergeant/pay grade E-8.

5.  On 24 January 1967, the applicant reenlisted for a period of 3 years.

6.  On 4 November 1968, a Medical Evaluation Board (MEB) found that the
applicant did not meet medical retention standards and referred him to a
Physical Evaluation Board.  The applicant agreed with the MEB's findings
and recommendation and indicated that he did not desire to remain on active
duty.

7.  On 19 November 1968, a Physical Evaluation Board (PEB) found the
applicant unfit for duty and recommended he be placed on the TDRL with a
combined disability rating of 60 percent and that he be reexamined during
November 1969.

8.  On 2 January 1969, the applicant was released from active duty and
placed on the TDRL effective 3 January 1969.  He had completed 1 year, 11
months, and 9 days of active serve on the current enlistment that was
characterized as honorable.  He had previously completed 16 years, 8
months, and 8 days of active service.

9.  On 11 October 1972, the applicant's disability was determined to be
permanent.  The applicant was removed from the TDRL on 30 November 1972 and
placed on the Retired List effective 1 December 1972 with a disability
rating of 60 percent.

10.  Army Regulation 635-40 (Physical Evaluation for Retention Retirement,
or Separation), then in effect, provides that an individual may be placed
on the TDRL (for the maximum period of 5 years which is allowed by Title
10, United States Code, section 1210) when it is determined that the
individual’s physical disability is not stable and he or she may recover
and be fit for duty, or the individual’s disability is not stable and the
degree of severity may change within the next 5 years so as to change the
disability rating.

11.  Army Regulation 635-40, then in effect, in pertinent part, provides
that a member on active duty being evaluated for possible unfitness because
of physical disability may submit an application for continuance on active
duty in lieu of being processed for disability retirement or separation.
The member may apply while being processed by a MEB or a PEB.

12.  Army Regulation 635-5 (Separation Documents), then in effect,
established the standardized policy for preparing and distributing the DD
Form 214.  The regulation provided, in pertinent part, for the following
entries on the DD Form 214:

      a.  Item 22a(1) -  enter total service for the period covered by the
DD Form 214, less time lost;

      b.  Item 22a(2) - enter all prior service excluding any service shown
in
Item 22a(1).  This includes any period served in the U.S. Army Reserve or
Army National Guard as a reservist not on active duty;

      c.  Item 22a(3) - enter the total of Item 22a(1) and Item 22a(2); and

      d.  Item 22b - enter total active service the member has completed
beginning with the earliest period of active service up to and including
current period of active duty, less any period served in the Army National
Guard or U.S. Army Reserve not on active duty, and less time lost.

13.  CRSC, as established by Section 1413a, Title 10, United States Code,
as amended, states that eligible members are those retirees who have 20
years of service for retired pay computation (or 20 years of service
creditable for reserve retirement at age 60) and who have disabilities that
are the direct result of armed conflict, specially hazardous military duty,
training exercises that simulate war, or caused by an instrumentality of
war.  Such disabilities must be compensated by the VA and rated at least
10% disabling.  For periods before 1 January 2004 (the date this statute
was amended), members had to have disabilities for which they have been
awarded the Purple Heart and are rated at least 10% disabled or who are
rated at least 60% disabled as a direct result of armed conflict, specially
hazardous duty, training exercises that simulate war, or caused by an
instrumentality of war.  CRSC benefits are equal to the amount of VA
disability compensation offset from retired pay based on those disabilities
determined to be combat-related.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to
show that he completed 20 years of active service so that he may be granted
CRSC.

2.  The applicant had completed 1 year, 11 months, and 9 days of active
service on his current enlistment.

3.  The applicant had 16 years, 7 months, and 9 days of prior active
service.

4.  Only that portion, 28 days, of the applicant's service in the Army
National Guard that was actually active service is added into the
computation for total active service.  Therefore, the applicant's total
active service is computed to be 18 years, 7 months, and 18 days.

5.  The applicant's enlistment in the Army National Guard, 2 years and 21
days, is creditable for basic pay purposes only.  The applicant's "other
service" includes his Army National Guard service and his prior active
service in the U.S. Army.  Therefore, his "other service" is computed to be
18 years and 8 months.

6.  Based on the above computations the applicant's total service
creditable for pay purposes is 20 years, 7 months, and 9 days.

7.  In view of the above computations, the evidence does not support the
applicant's contention.

8.  The applicant clearly indicated that he did not desire to continue on
active duty.

9.  It would appear that the applicant was satisfied with his separation
until the CRSC  was passed into law.  The fact that a law is passed after a
Soldier’s separation which provides benefits to Soldiers who meet certain
criteria does not establish an error or injustice in the separation of the
Soldier.  The Board does not correct military records solely to establish
entitlement to benefits.

10.  In order to justify correction of a military record the applicant
must, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 January 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
2 January 1972.  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

___sk___  ___drt___  ___dja___  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.




                                  _________Stanley Kelley________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003542                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051108                                |
|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.                      |                                        |


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