RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 November 2006
      DOCKET NUMBER:  AR20060003525


      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. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |Member               |
|     |Mr. David W. Tucker               |     |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, through counsel, that his records be corrected
to show that he served 20 years of active duty and, based on this
correction, that he be given eligibility for his choice of Combat Related
Special Compensation (CRSC) and Concurrent Retirement and Disability
Payments (CRDP), retroactive to the date he first became eligible for these
benefits.

2.  The applicant states, through counsel, that he was under the impression
that he had served 20 full years of active duty when he was retired.  He
first learned that he did not have 20 years of active duty when his
application for CRSC was denied.

3.  The applicant believes the error was caused when he was released from
active duty after being wounded in Vietnam.  The applicant states that he
would have been redeployed to Vietnam if he had reenlisted, so he allowed
himself to be separated from active duty so he could enlist with an
assignment of choice enlistment option.  The applicant states that he
started the enlistment process on 2 August 1968 and had returned to active
duty before 30 August 1968.

4.  The applicant outlines the requirements for CRSC for Reservists and
Guardsmen who are receiving retired pay for nonregular service (20
qualifying years of service) and Soldiers who are retired under the
Temporary Early Retirement Authority (TERA).

5.  The applicant states that the Board can grant relief by authorizing
CRSC under the criteria for nonregular service; the Board can grant relief
by granting him 39 days of active duty credit under the theory that he was
simply in an active duty transition period from 12 July through 30 August
1968; or the Board can grant relief by returning the applicant to active
duty to complete the 39 days he requires to be credited with 20 years of
active duty.

6.  The applicant provides his DD Form 214, Certificate of Release or
Discharge From Active Duty, with an effective date of 22 July 1985; a
letter from the U.S. Army Physical Disability Agency CRSC Branch informing
him that he did not meet the statutory criteria for CRSC because he did not
have 20 years of active duty; his DD Form 214 with an effective date of 12
July 1968; Special Orders 141 dated 10 July 1968; two pages of an
enlistment document; and an excerpt from CRSC program guidance.



CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 July 1985.  The application submitted in this case is dated
22 February 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’s military records show that he enlisted in the Regular
Army on 14 July 1965.  He served in Vietnam as an infantryman and was
promoted to pay grade E-5.  He was wounded in action on 1 March 1966.  The
applicant was honorably released from active duty at the expiration of his
term of service on 12 July 1968.

4.  On 30 August 1968, the applicant signed a DD Form 4, Enlistment
Contract – Armed Forces of the United States, enlisting in the Regular
Army.  The applicant remained on active duty from this date, serving
through extensions and reenlistments.

5.  On 5 October 1976, the applicant was given a USAEREC Form 3, Statement
of Service – Enlisted Personnel.  This form shows that the applicant was
not credited with active duty from 13 July to 29 August 1968.

6.  On 7 March 1985, a Medical Evaluation Board (MEB) determined that the
applicant was medically disqualified.  In Item 9, Total Years of Military
Service, of the DA Form 3947, Medical Evaluation Board Proceedings, it
showed the applicant had 19 years and 10 months of active duty and had 2
months of inactive service.  In Item 16 of this form it was shown that the
applicant stated that he did not desire to continue on active duty.

7.  On 15 May 1985, a Physical Evaluation Board (PEB) determined that the
applicant was physically unfit and recommended that he be permanently
retired, rated 40 percent disabled.  On the DA Form 199, Physical
Evaluation Board


Proceedings, which recorded those findings and recommendation, it was
stated that the applicant had requested retention beyond his ETS to
complete disability processing.  On this form it is also shown that the
applicant concurred with the findings and recommendation of the PEB and
waived a formal hearing.

8.  On 24 June 1985, a DA Form 3713, Data for Retired Pay, was completed.
On that form it was shown that the applicant had 19 years, 10 months and 21
days of service for which his retired pay would be calculated.  This form
also shows that the applicant had 20 years and 9 days of total service for
basic pay purposes.

9.  On 22 July 1985, the applicant was honorably released from active duty
by reason of physical disability, permanent, and was placed on the Retired
List the following day.  The DD Form 214 he was issued, Item 12c, Net
Active Service This Period, has 7 years and 10 months entered.  Item 12d,
Total Prior Active Service, has 12 years and 21 days entered.

10.  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 Department of Veterans Affairs (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.

11.  The Fiscal Year 2004 National Defense Authorization Act provided a 10-
year phase-out of the offset to military retired pay due to receipt of VA
disability compensation for members whose combined disability rating is 50%
or greater.


This provision is referred to as CRDP.  Members retired under disability
provisions (10 U.S. Code chapter 61) must have 20 years of either active
duty or qualifying years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, by his own admission, deliberately allowed himself to be
released from active duty on 12 July 1968 so he would not be redeployed
back to Vietnam.  As such, there is no question that the applicant knew he
had a break in active service.

2.  While the applicant states he reentered active duty before 30 August
1968, his enlistment contract clearly shows that he enlisted in the Regular
Army on 30 August 1968.  As such, the record properly shows the applicant
had a break in active service from 13 July to 29 August 1968.

3.  Two statements of service, one prepared on 5 October 1976, and one
prepared on 24 June 1985, showed the applicant was not given active duty
credit for his break in service.

4.  Even though the applicant’s MEB showed that the applicant had 19 years
and 10 months of active duty, the applicant stated that he did not desire
to continue on active duty.

5.  The applicant’s PEB showed that the applicant had requested to remain
on active duty to complete his disability processing, but there is no entry
to show he requested to remain on active duty to complete 20 years of
active duty.

6.  The applicant’s final DD Form 214 showed he had 7 years and 10 months
of active duty during the period covered by the form, and had 12 years and
21 days of prior active duty.  Those two periods of service total 19 years,
10 months and 21 days.

7.  In view of the forgoing, the preponderance of evidence shows that the
applicant was completely aware that he had a break in active service, that
the time he spent between his first and second enlistments was not used in
computing his retired pay, and that he had less than 20 years of active
service when he was placed on the Retired List.



8.  Therefore, there is no basis for correcting the applicant’s records to
show that he has 20 years of active duty.

9.  It would appear that the applicant’s service computation did not become
an issue until he was denied CRSC.  The Board does not change military
records simply to establish eligibility for benefits.  An error or
injustice must exist before the Board recommends correcting an applicant’s
records.

10.  The applicant was properly denied CRSC because he does not have 20
years of active duty.  It would be in contravention of law to change the
applicant’s records to grant his CRSC for nonregular service.  His retired
pay is calculated on 19 years, 10 months and 10 days of active duty.  His
retired pay is not based on 20 years of nonregular service.  The
applicant’s request to return to active duty to serve his missing 39 days
is not considered a viable option.  He was retired for being physically
unfit to perform his duties 21 years ago.

11.  The applicant is not entitled to CRDP because he does not have 20
years of service.

12.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 July 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 21 July 1988.  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

____jcr__  ___dwt___  ___rws__  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.




                                  ________Jeffrey C. Redmann________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003525                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061116                                |
|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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