RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 July 2006
      DOCKET NUMBER:  AR20050014523


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert J. Osborn, II          |     |Chairperson          |
|     |Mr. John M. Moeller               |     |Member               |
|     |Ms. Naomi Henderson               |     |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 records be corrected to
show 20 years of active service.

2.  The applicant states, in effect, that his permanent physical disability
caused him to retire before reaching 20 years of active service.  He says
because he did not have any breaks in service, he should be granted 20
years of active service.  He further states that he needs 20 years of
active service so that he can establish eligibility for Combat Related
Special Compensation (CRSC).

3.  The applicant provides:

      a.  a copy of his DD Form 214 (Certificate of Release or Discharge
From Active Duty);

      b.  a copy of USAREC Form 3 (Statement of Service Enlisted
Personnel); and

      c.  a copy of a letter from U.S. Army Physical Disability Agency,
CRSC Compensation Division.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 October 1980, the date he was released from active
duty.  The application submitted in this case is dated 26 September 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
October 1961.  He served continuously until he was released from active
duty on  
27 October 1980 and placed on the Retired List on 28 October 1980 with a  

100 percent disability rating.  He was honorably released from active duty
by reason of Permanent Physical Disability Retirement, after serving 19
years and
2 days of active federal service.

4.  On 29 August 1980, the applicant's Medical Evaluation Board (MEB)
proceedings show that the applicant elected not to be present during the
proceedings and elected not to present any views in his own behalf.  The
MEB proceedings shows the applicant was found medically unfit and it also
shows that the applicant elected not to continue on active duty.  On 4
September 1980, the MEB recommended that the applicant be presented to
Physical Evaluation Board (PEB).  The applicant did not appeal the MEB's
findings or recommendation.

5.  On 16 September 1980, an informal PEB found the applicant to be
physically unfit and recommended a combined rating of 100 percent and that
the applicant be permanently retired.  On 18 September 1980, the applicant
made his election to concur and to waive the formal hearing of his case.

6.  Department of the Army Orders D203, dated 17 October 1980, directed
Permanent Disability Retirement for the applicant with completion of 19
years and 2 days of active federal service.

7.  On 24 August 2005, the U.S. Physical Disability Agency CRSC Branch
informed the applicant that he did not qualify for CRSC because he did not
meet the eligibility requirement of 20 years or more of active military
service.

8.  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 who is referred to a PEB be counseled on their right to
request Continuation On Active Duty.  The Soldier will make his or her
election in writing.

9.  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.

10.  Combat-Related Special Compensation (CRSC), as established by Section
1413a, Title 10, United States Code, as amended, provides for the payment
of the amount of money a military retiree would receive from the VA for
combat related disabilities if it wasn’t for the statutory prohibition for
a military retiree to receive a VA disability pension.  Payment is made by
the Military Department, not the VA, and is tax free.  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.  Military retirees who are approved
for CRSC must have waived a portion of their military retired pay since
CRSC consists of the Military Department returning a portion of the waived
retired pay to the military retiree.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that he be granted 20 years of active service
because he did not have any break in service.  He claims his service was
cut short because of he was found medically unfit to continue on active
duty.

2.  Evidence of records show that the applicant elected not to present any
views in his own behalf to the MEB and that he elected not to continue on
active duty.  Records also show that he made an election to concur with the
informal PEB's recommendation to retire him for physical unfitness and to
waive a formal hearing of his case.

3.  The applicant's DD Form 214 for the period ending 27 October 1980, item
 
12 (Record of Service), shows net active service this period as 4 years,  
6 months, and 27 days.  His total prior active service is recorded as 14
years,  
5 months, and 27 days for a combine total of 19 years and 2 days of active
federal service.  Therefore, the applicant's active federal service
recorded on his DD Form 214 and his retirement orders are correct.

4.  CRSC was implemented 23 years after the applicant was placed on the
Retired List.  It is the applicant’s stated intent to have his records
corrected solely to establish eligibility for CRSC.  In this regard, the
Board does not correct properly constituted records just to establish
entitlement to a benefit.  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 27 October 1980; therefore, the time
for
the applicant to file a request for correction of any error or injustice
expired on
26 October 1983.  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

___jmm__  ____nh__  ___rjo___  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.




                                  _______Robert J. Osborn, II______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014523                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060713                                |
|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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