RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20060002875


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 he is entitled to a Reserve retirement.

2.  The applicant states that he was wrongfully separated.  [He and other]
Soldiers were separated from the rest of the company and told to prepare to
be discharged.  They would be sent home immediately.  If he had wanted to
be discharged, he could have done it himself.  [He had] almost 19 years of
service and no problems during those years.  He does not know what happened
or why, because he did nothing wrong.

3.  The applicant provides two DD Forms 214 (Armed Forces of the United
States Report of Transfer or Discharge/Certificate of Release or Discharge
from Active Duty) for the periods ending 2 June 1967 and 1 March 1991,
respectively; two Honorable Discharge Certificates; U. S. Army Reserve
discharge orders dated 24 May 1970; a 26 August 1991 letter from the
Department of Veterans Affairs; and page 2 of an unidentified document.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 March 1991.  The application submitted in this case is dated
31 December 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 was born on 29 April 1943.  After having had prior
service in the Regular Army and the U. S. Army Reserve, he enlisted in the
Army National Guard on 5 September 1975.

4.  The applicant volunteered for active duty with his unit for Operation
Desert Shield and entered active duty on 27 September 1990.

5.  The Medical Evaluation Board (MEB) Narrative Summary (typed 6 December
1990) indicates that the applicant arrived at Fort Indiantown Gap, PA, at
which time he was reported by others to be talking to himself, having
difficulty understanding directions, and paying attention to information
even though he was a good Soldier.  It was reported that he did not
participate during training drills.  The applicant informed the examiner
that he felt the new commander sent him for a mental evaluation because the
commander did not know him.  The Narrative Summary noted that the applicant
stated (with confirmation from the applicant’s family) that he had previous
psychiatric hospitalization in 1972 and in 1974.  He was diagnosed with
schizophrenia and referred to a Physical Evaluation Board (PEB).  He was
found to be mentally competent for pay purposes and to have the capacity to
understand the nature of and to cooperate in PEB proceedings.

6.  On 24 January 1991, the applicant agreed with the MEB’s findings and
recommendation.

7.  On 29 January 1991, an informal PEB found the applicant to be unfit for
service due to schizophrenia, EPTS (existed prior to service) and not
aggravated by service.  The DA Form 199 (Physical Evaluation Board (PEB)
Proceedings) is partially illegible, but it appears he was recommended for
separation without benefits.  On 1 February 1991, the applicant concurred
with the findings of the informal PEB and waived a formal hearing of his
case.

8.  On 1 March 1991, the applicant was released from active duty.
Effective        1 March 1991, he was discharged from the Army National
Guard and as a Reserve of the Army.  As of that date he had completed 18
years, 9 months, and 25 days of qualifying service for a Reserve
retirement.

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.  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 purposes of his employment on active duty.
 Under the laws governing the Army Physical Disability Evaluation system,
Soldiers who sustain or aggravate physically unfitting disabilities must
meet several line of duty criteria to be eligible to receive retirement and
severance pay benefits.  One of the criteria is that the disability must
have been incurred or aggravated while the Soldier was entitled to basic
pay or was the proximate cause of performing active duty or inactive duty
training.

10.  Title 38, U. S. Code, sections 310 and 331, permits the Department of
Veterans Affairs to award compensation for a medical condition which was
incurred in or aggravated by active military service.

11.  Public Law 103-337, dated 5 October 1994, established early Reserve
retirement eligibility for Soldiers involuntarily separated from the
Selected Reserve due to physical disability during the period 5 October
1994 through      30 September 1999.  Eligibility was based on a minimum of
15 years of qualifying service toward Reserve Component retirement.  Title
10, U. S. Code, section 12731a(a)(1) was amended to extend the Early
Reserve Retirement Eligibility for Disabled Members to the period beginning
on 23 October 1992 and ending on     1 October 1999 to Soldiers who
attained 15 years of retirement eligibility after     1 October 1991.

DISCUSSION AND CONCLUSIONS:

1.  Shortly after the applicant entered active duty in September 1990, he
was diagnosed with schizophrenia.  He was found to be mentally competent
for pay purposes and to have the capacity to understand the nature of and
to cooperate in PEB proceedings.  An informal PEB found him to be unfit due
to schizophrenia.  It also found that his condition had existed prior to
service (based on his 1972 and 1974 hospitalizations).  The applicant
concurred with the findings of the PEB.

2.  Based upon the applicant being found unfit for service, he was released
from active duty and discharged from the Army National Guard and the U. S.
Army Reserve effective 1 March 1991.

3.  It is acknowledged that the applicant had over 18 years of service for
a Reserve retirement at the time of his discharge; however, the provisions
for a  15-year retirement based upon disability was not passed into law
until October 1994 (and made retroactive to 23 October 1992).  Regrettably,
there is insufficient evidence to warrant granting the relief requested.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1991; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         28 February 1994.  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

__lds___  __jtm___  __jlp___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002875                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060822                                |
|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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