RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 AUGUST 2006
      DOCKET NUMBER:  AR20050015921


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Paul Smith                    |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Mr. Ronald Gant                   |     |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 permanent disability
retired percent be changed from 30 percent to 40 percent.

2.  The applicant states he would like his August 2001 discharge order to
show the correct disability rating of 40 percent instead of the incorrect
30 percent currently shown.  He states he has been attempting to correct
this error but to no avail and was not aware of the statutory filing
requirements.

3.  The applicant provides a copy of his original disability rating, his
discharge documents associated with his placement on the TDRL (Temporary
Disability Retired List), a copy of a statement from DFAS (Defense Finance
and Account System) showing his 40 percent rating, and a copy of his final
separation order.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 August 2001.  The application submitted in this case
is dated
26 October 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.  Documents available to the Board indicate the applicant entered active
duty as a commissioned officer on 15 January 1995.  In October 1999 an
informal PEB (Physical Evaluation Board) recommended the applicant’s name
be placed on the TDRL with a combined disability rating of 40 percent.  In
November 1999 he waived his right to a formal hearing and on 26 December
1999 the applicant was discharged and his name placed on the TDRL the
following day.  His November 1999 separation orders confirm his 40 percent
disability rating.

4.  In 18 January 2000 DFAS informed the applicant how his compensation
would be calculated while he was on the TDRL.  That document also notes the
applicant’s TDRL rating of 40 percent.

5.  On 16 August 2001 orders were issued removing the applicant’s name from
the TDRL and permanently retiring him.  That order indicates he was being
permanently retired with a disability rating of 30 percent.  Disability
documents associated with the applicant’s removal from the TDRL were not
available to the Board or provided by the applicant.

6.  Army Regulation 635-40, which establishes the policies and provisions
for physical evaluation for retention, retirement, or separation of Army
Soldiers, 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.
Following reevaluation, and once it has been determined that the
individual’s medical condition has stabilized, the individual could
ultimately be found fit, permanently retired providing his final disability
rating was at 30 percent or higher, or, in cases where the final disability
rating was less than 30 percent, entitled to disability severance pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence which is available to the Board suggests that following
the applicant’s placement on the TDRL his medical condition eventually
stabilized sufficiently which permitted a permanent rating of 30 percent
vice the original 40 percent rating made at the time his name was placed on
the TDRL.

2.  The fact that the applicant’s TDRL documents show a rating of 40
percent and his final orders show a disability rating of 30 percent is not
sufficiently compelling to conclude that an error was made in the
disability rating reflected on the August 2001 orders.  The final rating
would have been included as part of his reevaluation Physical Evaluation
Board (PEB) which was not available to the Board and not provided by the
applicant.  That final PEB rating document and not the TDRL evaluation
would be the determining factor in deciding if an error was made on the
applicant’s August 2001 orders.  Because an individual’s final disability
rating could change upon reevaluation, in the absence of the final PEB
summary, it is presumed that the August 2001 orders properly reflect the
applicant’s final disability rating.

3.  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 that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 December 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
25 December 2002.  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

___PS __  ___LD  __  ___RG __  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.




                                  ______  Paul Smith________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015921                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060829                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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