RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 August 2006
      DOCKET NUMBER:  AR20060001498


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. James R. Hastie               |     |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 his records be corrected to show he
completed  20 years of qualifying service for a Reserve retirement.

2.  The applicant states he was medically retired 7 months shy of
completing    20 years of qualifying service.

3.  The applicant provides orders removing him from the Temporary
Disability Retired List (TDRL); a Retiree Account Statement; and an Army
National Guard Current Annual Statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 August 1992.  The application submitted in this case is
dated 18 January 2006.

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 was born on 8 January 1946.  After having had prior
service,  he enlisted in the Army National Guard on 26 March 1977.  He was
ordered to active duty in support of Operation Desert Storm on 7 January
1991.  On            7 March 1991, he was involved in a motor vehicle
accident in Iraq and sustained a traumatic injury to his left knee.

4.  On 8 November 1991, an informal PEB concluded the applicant did not
have any functional impairment which prevented satisfactory performance of
duty and recommended he be returned to duty.  The applicant did not concur
and demanded a formal hearing.

5.  An addendum was provided, and another informal PEB found the applicant
to be unfit due to chronic and acute left lower extremity deep venous
thrombosis, with a 30 percent disability rating, on 26 March 1992.  The
applicant apparently initially did not concur and demanded a formal
hearing.  However, on 22 July 1992, he withdrew his request for a formal
hearing and agreed with the informal PEB’s decision.

6.  On 26 August 1992, the applicant was released from active duty by
reason of physical disability and placed on the TDRL effective the
following day.  As of     26 August 1992, he completed 19 years and 5
months of qualifying service for a Reserve retirement.

7.  On 18 February 1994, a TDRL PEB found that the applicant’s condition,
acute and chronic deep venous thrombosis, had not stabilized and
recommended he be kept on the TDRL.

8.  On 16 August 1995, a TDRL PEB found the applicant to be unfit due to
recurrent chronic and new deep vein thrombosis and recurrent pulmonary
embolism, on coumadin therapy.  The PEB found his condition to be stable
and recommended his permanent retirement with a 30 percent disability
rating.  On 25 August 1995, the applicant concurred with the findings of
the PEB.  On         21 September 1995, he was removed from the TDRL and
permanently retired by reason of physical disability.

9.  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.  In pertinent part, the regulation states that the
time at which a Soldier should be processed for disability retirement or
separation must be decided on an individual basis.  A Soldier may not be
retained or separated solely to increase retirement or separation benefits.


10.  Title 38, U. S. Code, sections 1110 and 1131, permits the Department
of Veterans Affairs (VA) to award compensation for a medical condition
which was incurred in or aggravated by active military service.  Until
certain provisions of the law were changed in fiscal year 2004, veterans
could not receive both a military retirement for physical unfitness and a
VA disability pension.  Under the law prior to 2004, a veteran could only
be compensated once for a disability.  The new law does not apply to
disability retirees with less than 20 years of service and retirees who
have combined their military time and civil service time to qualify for a
civil service retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows an informal PEB found the applicant to be
unfit due to chronic and acute left lower extremity deep venous thrombosis,
with a    30 percent disability rating, on 26 March 1992.  Although there
is some evidence to indicate the applicant initially did not concur with
the findings of the PEB (the evidence suggesting he might have felt he
should have had a higher rating) and demanded a formal hearing, on 22 July
1992 he withdrew his request for a formal hearing and agreed with the
informal PEB’s decision.  He was then retired, by being placed on the TDRL,
effective 26 August 1992.

2.  The governing regulation states that the time at which a Soldier should
be processed for disability retirement or separation must be decided on an
individual basis.  A Soldier may not be retained or separated solely to
increase retirement or separation benefits.

3.  It appears the applicant may be raising the issue of a 20-year Reserve
retirement at this time due to the recent change in the law allowing
concurrent receipt of retired pay and VA disability compensation.
Regrettably, the mere fact the law was enacted 12 years after he was
retired for disability prior to completing 20 years of qualifying service
for a Reserve retirement is an insufficient basis on which to grant the
relief requested.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 August 1992; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         25 August 1995.  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

__jea___  __ded___  __jrh___  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.




                                  __James E. Anderholm__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001498                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060808                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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