RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       18 January 2007
      DOCKET NUMBER:  AR20060007980


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |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, in effect, that his retirement be changed from
retirement for length of service (longevity) to permanent disability.

2.  The applicant states, in effect, he believes his records should reflect
the true reason for his retirement.  He also states that he completed 20
years of active Federal service (AFS); however, he did not retire on his
own accord.  He was evaluated for permanent disability retirement.  He was
allowed to remain on active duty only after a Continuation of Active Duty
(COAD) was approved.  His expiration of term of service (ETS) was adjusted
to force him to retire on 30 June 1992.  He was disabled upon retirement
and requests the record be corrected to reflect this.  He further states
that because of his disability, it is very hard to find and keep
employment.  This correction would allow him the preference and service
credit that he earned.

3.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), his Physical Evaluation Board (PEB)
Proceedings, and his COAD of Disabled Personnel memorandum, in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 June 1992, the date of his separation from active duty
for the purpose of retirement.  The application submitted in this case is
dated 30 May 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 he enlisted in Regular Army, as a
private, in pay grade E-1, on 28 April 1972, for 3 years.  He continued to
serve on active duty through a series of reenlistments.

4.  On 22 August 1990, a Military Occupational Specialty (MOS)/Medical
Retention Board (MMRB) evaluated the abilities of the applicant to perform
the physical requirements of his primary MOS (PMOS).  Based on a thorough
review of the applicant's recent permanent physical profile, dated 31 May
1990, and all other pertinent records, the MMRB recommended that the
applicant be retained in his current PMOS.  The MMRB found that the
applicant's permanent medical condition did not preclude satisfactory
performance in his PMOS physical requirements in a worldwide field
environment.

5.  On 16 November 1990, the applicant was given a physical profile for
osteoarthritis, right knee.

6.  On 21 March 1991, the applicant appeared before a PEB.  The PEB
considered the applicant's condition of impairment of the right knee,
manifested by absent ACL and osteoarthritis and right knee arthroscopy.
The PEB noted that the applicant was not currently performing in his PMOS
and had been reinjured in attempting to do his primary job and was at risk
in that MOS.  The PEB found the applicant's injury to be in the line of
duty, not due to his own misconduct.  The PEB recommended the applicant be
separated for permanent physical disability reasons with a combined rating
of 30 percent if the applicant's COAD was denied.  The applicant concurred
with the PEB's findings.

7.  On 4 April 1991, the applicant's request for COAD under the provisions
of Army Regulation 635-40 was approved.  The applicant was authorized to be
retained on active duty until completion of 20 years of AFS.  The
applicant's new ETS became 30 June 1992.  The approval memorandum also
stated that if, during the COAD period, the applicant was unable to perform
assigned duties because of either the existing or a new medical condition,
the applicant would be referred to the Medial Treatment Facility (MTF) for
reevaluation.  The MTF would reevaluate the applicant and process the case
through the Physical Disability System.  This action precluded evaluation
of the applicant by a MMRB.

8.  On or about 7 August 1991, the applicant submitted an application for
voluntary retirement with a desired retirement date of 1 July 1992.  His
request was approved on an unknown date.

9.  Item 30 (Statement of Understanding) of the applicant's DA Form 2339
(Application for Voluntary Retirement), states in part, "I understands that
if I wish to undergo a medical examination prior to my retirement, I am
responsible for arranging for it to be started on the earliest possible
date.  I am aware that the purpose of this examination is to ensure that my
medical records reflect, as accurately as possible, my state of health on
retirement and to protect my interests and those of the Government.  I also
understand that my retirement will take effect on the requested date and
that I will not be held on active duty to complete this examination."

10.  The applicant's records do not contain the findings of a Medical
Evaluation Board (MEB) and PEB prior to his processing for final voluntary
non-disability retirement.

11.  The applicant was honorably separated from active duty for the purpose
of retirement, in pay grade E-7, effective 30 June 1992, for length of
service, under the provisions of Army Regulation 635-200, chapter 12.  He
was transferred to the United States Army Control Group (Retired).

12.  Army Regulation 635-40 prescribes the policies and procedures for
evaluation for physical fitness of Soldiers who may be unfit to perform
their military duties because of physical disability.  Paragraph 3-1,
provides that the mere presence of impairment does not, of itself, justify
a finding of unfitness because of physical disability.  In each case, it is
necessary to compare the nature and degree of physical disability present
with the requirements of the duties the member reasonably may be expected
to perform because of his or her office, rank, grade or rating.  The Army
must find that a service member is physically unfit to reasonably perform
their duties and assign an appropriate disability rating before they can be
medically retired or separated.

13.  Army Regulation 635-40, paragraph 3-10, provides that Headquarters,
Department of the Army may defer the disposition of a Solider who, although
unfit because of physical disability, can still serve effectively with
proper assignment limitations.  The Soldier must consent to being deferred.
 When COAD is approved, the Soldier remains liable to complete any service
obligation he/she has incurred unless the disqualifying condition
progressed to a point wherein the Soldier becomes unable to perform within
established limitations.  At the time of final retirement or separation,
the Soldier will be referred to a MEB and PEB.

14.  Army Regulation 635-40, paragraph 6-14, provides that a COAD under the
provisions of this chapter will be reevaluated by a MEB and PEB when
processing for final retirement.  If the disability has improved so as to
no longer be unfitting or has been cured, the Soldier may be found fit.  If
the disability has remained unchanged or increased in severity, the PEB
will find the Soldier unfit because of physical disability.  Presumption of
fitness does not apply to the subsequent disability processing of Soldiers
who were approved for COAD.

15.  Army Regulation 635-200 provides the basic authority for the
separation of enlisted personnel.  Chapter 12 of this regulation specifies
that a Soldier of the Regular Army who has completed 20, but less than 30
years of active Federal service, may be retired at his/her request.  The
Soldier must have completed all required service obligations at the time of
retirement.
16.  The Department of Veterans Affairs (VA) is responsible for providing
programs for veterans with service-connected disabilities.  These programs
help veterans with service-connected disabilities prepare for and find jobs
within their physical, mental, and emotional capabilities.  For veterans
whose disabilities are so severe they cannot currently consider employment,
VA helps them attains as much independence in daily living as possible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to permanent disability retirement.  He
has not shown error, injustice, or inequity for the relief he now requests.


2.  The applicant contends that a permanent disability was the true reason
for his retirement.  However, the applicant was found permanently disabled
for continued military service by a PEB on 21 March 1991 and the same PEB
recommended he be separated unless his request for COAD was not approved.
The applicant's request for COAD was approved on 4 April 1991 and he was
allowed to complete 20 years of AFS.

3.  When the applicant's COAD was approved, the approval memorandum gave
instructions that if, during the COAD period, the applicant was unable to
perform assigned duties because of either the existing or a new medical
condition, the applicant would be referred to the MTF for reevaluation.
The MTF would reevaluate the applicant and process the case through the
Physical Disability System.  This provision would preclude evaluation of
the applicant by a MMRB.

4.  The applicant acknowledged in his application for voluntary retirement
that it was his responsibility for arranging for a physical examination
before his retirement date to ensure that his medical records reflects, as
accurately as possible, his state of health on his retirement and to
protect his interests and those of the Government.

5.  There is no evidence a final MEB and PEB determined the applicant unfit
because of permanent physical disability prior to his processing for final
retirement.  He completed 20 years of AFS on 30 June 1992 and was
appropriately separated and transferred to the Retired Reserve.  In the
absence of information to the contrary, it is concluded that the
applicant’s request for separation for length of service was correct and in
accordance with applicable laws and regulations.

6.  The applicant's records is also void of the results of a physical
examination for the purpose of retirement and he provided no evidence he
took one or did not take one.  In this case, Government regularity must be
assumed since he was allowed to proceed with his retirement on the date he
requested in his application for voluntary retirement.  The Board must
assume that the results of a physical examination for this purpose was
available and considered.

7.  In his application to the Board, the applicant indicated he was finding
it very difficult to find and keep employment.  The applicant should be
advised that the purpose of referring an individual to a MMRB, MEB, and PEB
(components of the physical performance evaluation system) is to maintain
the quality of the force by ensuring that Soldiers are physically qualified
to perform duties of their PMOS worldwide and under field conditions.  The
applicant is further advised if he is having difficulties finding and
keeping employment due to his alleged disabilities, he should make an
appointment to see a representative of the VA to determine which of a broad
range of veterans programs and services he may be qualified for, including
benefits related to service-connected disabilities.

8.  In view of the foregoing, there is no basis for granting the
applicant's request.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1992, the date of his
separation from active duty for the purpose of retirement; therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 29 June 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

__JCR___  __DWT _  __REB  _  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                 |AR20060007980                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070118                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |145.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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