RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050005898


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 issued a 20-year letter (notification
of eligibility for retired pay at age 60).

2.  The applicant states he retired with 21 years, 1 month, and 29 days of
service for pay.  He served his country with honor and dignity and would
still be serving today if it had not been for the disability that forced
his retirement.  He was disappointed when he learned his retired pay was
discontinued as a result of being awarded Department of Veterans Affairs
unemployability compensation for disabilities he received while on active
duty.

3.  The applicant provides the documents listed as enclosures "a" through
"j" on his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 March 1989.  The application submitted in this case is
dated     14 April 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 had prior enlisted service in the Regular Army from 23
January 1967 through 22 January 1970; prior enlisted service in the U. S.
Army Reserve not on active duty from 23 January 1970 through 22 January
1973; prior enlisted service in the Regular Army from 15 January 1974
through 5 May 1982; and prior warrant officer service on active duty from 6
May 1982 through 4 May 1986.  On 5 May 1986, he enlisted in the Regular
Army.

4.  On 6 May 1988, a Medical Evaluation Board (MEB) referred the applicant
to a Physical Evaluation Board (PEB) for diagnoses of (1) anthersclerotic
coronary artery disease manifested by non-Q-wave myocardial infarction;
single vessel disease, status post successful coronary angioplasty; with no
history of congestive heart failure or cardiomegaly; in normal sinus rhythm
and no angina; (2) hyperlipoproteinemia, Type II; and (3) status post
gunshot wound to the left wrist (for which he had been awarded the Purple
Heart).

5.  On 21 December 1988, a PEB found the applicant to be unfit for service.
 He requested continuation on active duty; his request was apparently
denied.  On   13 March 1989, he was released from active duty by reason of
physical disability with a 30 percent disability rating.  He had completed
18 years, 1 month, and    29 days of creditable active service and 21
years, 1 month, and 29 days of service for pay.

6.  By letter dated 9 August 2004, the Department of Veterans Affairs found
the applicant to be entitled to individual unemployability effective 16
January 2004.

7.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purpose of his employment on active duty.


8.  The Fiscal Year 2004 National Defense Authorization Act provided for
phased-in restoration of the retired pay deducted from the accounts of
military retirees because of their receipt of VA compensation.  Concurrent
Retirement and Disability Payments (CRDP) applies to all retires with a VA-
rated, service-connected disability of 50 percent or higher but does not
apply to disability retirees with less than 20 years of service.  The
phased-in restoration began       1 January 2004.

9.  Title 10, U. S. Code, section 12731 provides that a non-regular service
member is entitled, upon application, to retired pay if the person is at
least        60 years of age; has performed at least 20 years of qualifying
service (years in which 50 or more retirement points are earned during each
year and which count as qualifying years of service for retirement benefits
at age 60); and, at the time the applicant retired, had performed the last
eight years of qualifying service while a member of a reserve component.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered; however, at
the time of his disability retirement he was a Regular Army enlisted
Soldier.  He did not meet the statutory requirements for a non-regular
retirement and, therefore, was not eligible for a 20-year letter.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 March 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         12 March 1992.  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

__tap___  __ena___  __jrs___  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.




                                  __Thomas A. Pagan_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005898                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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