RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 February 2007
      DOCKET NUMBER:  AR20060010101


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 discharge be changed to
length of service or medical retirement.

2.  The applicant states, in effect, that at the time of his discharge, he
had more than 20 years of active military service and should have been
retired for years of service or medically retired and not released with
severance pay.  He claims he was given only 1 day to separate from the
military without any instructions from his commander.

3.  The applicant provides the following documents in support of his
application:  Department of Veterans Affairs (VA) Letter; Service
Computation for Separation; Separation Orders; and Separation Document (DD
Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 26 October 1998, the date of his discharge.  The
application submitted in this case is dated 12 July 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 record shows that he served on active duty in an
enlisted status for 2 years, 10 months and 6 days from 31 July 1973 through
7 June 1976; and for 2 years, 9 months and 14 days from 8 June 1976 through

21 March 1979.

4.  On 22 March 1979, he was appointed a Warrant Officer One (WO1) in the
United States Army Reserve (USAR) and entered active duty in this status.
He served on active duty for 3 years through 21 March 1982, at which time
he was honorably released from active duty (REFRAD) and returned to the
USAR Control Group (Reinforcement).

5.  On 26 October 1988, the applicant reentered active duty as a Chief
Warrant Officer Three (CW3).
6.  On 4 October 1994, the applicant was notified that he had not been
selected for promotion to CW4 or for selected continuation on active duty
in grade as a twice non-selected officer for promotion.  He was further
informed that his two time non-selection for promotion to CW4 required him
to be REFRAD and that his mandatory release date would be 1 April 1995.
The applicant was provided an option statement with this notification.  On
25 October 1994, he completed the option statement and elected to retain
his warrant officer appointment and be REFRAD.

7.  The applicant was retained on active duty to undergo medical processing
through the Physical Disability Evaluation System (PDES), and on 5 January
1996, a Medical Evaluation Board (MEB) recommended his case be referred to
a Physical Evaluation Board (PEB) based on his diagnosed conditions of
Major Depression, Narcissistic Personality Traits, and Multiple Somatic
Complaints.

8.  On 16 September 1997, a PEB convened in Washington D.C. to consider the
applicant's case.  The PEB found the applicant physically unfit for further
service for panic disorder, with a 10% disability rating.  The PEB further
indicated that a review of other diagnosed conditions resulted in a
determination that these conditions were not unfitting, and as a result
were not ratable.  The PEB finally recommended that the applicant be
separated with severance pay.  The applicant did not agree with the PEB’s
decision.

9.  On 9 October 1997, the applicant requested Continuance on Active Duty
(COAD).  He stated that if he were determined to be unfit because of
disability, he was applying for COAD.  He confirmed he met the criteria of
having at least 15 years but less than 20 years of service, which rendered
him eligible to apply for COAD.

10.  On 15 October 1997, the United States Army Physical Disability Agency
(USAPDA), after having reconsidered the applicant's case, adhered to the
PEB’s decision.  The USAPDA forwarded the case to the Army Physical
Disability Appeal Board (APDAB) and requested an appellate review.

11.  On 24 November 1997, the APDAB convened to consider the applicant's
case.  After a careful review of all available information, the APDAB voted
to affirm the decision of the USAPDA and PEB that the applicant was
physically unfit and that he be separated with severance pay with a
disability rating of 10%. The APDAB determined the applicant received a
full and fair hearing and the evaluation proceedings conformed to current
law and regulation.
12.  On 17 December 1997, the United States Army Reserve Personnel Center
(ARPERSCEN) denied the applicant's request for COAD.

13.  On 26 October 1998, the applicant was honorably REFRAD under the
provisions of Paragraph 4-24B(3), Army Regulation 635-40, by reason of
disability with severance pay.  The DD Form 214 he was issued confirms he
completed 10 years, 1 month, and 6 days of active military service during
the period 21 September 1988-26 October 1998.  The applicant authenticated
this document with his signature in Item 21 (Signature of Member Being
Separated).

14.  The applicant provides a VA Rating Decision, dated 11 August 1999,
which granted him service connection for the following conditions with the
disability rating indicated:  Major Depressive Disorder, 100%; Tinnitus,
10%; Removal of Cyst left Axilla, Right Axilla Cyst, 0%; Hypertension, 10%;
and Hiatal Hernia with Gastroesophageal Reflux.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

16.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a MEB to document a
Soldier's medical status and duty limitations insofar as duty is affected
by the soldier's status.  If the MEB determines a Soldier does not meet
retention standards, the case will be referred to a PEB.  The PEB evaluates
all cases of physical disability equitably for the Soldier and the Army.
It also investigates the nature, cause, degree of severity, and probable
permanency of the disability of soldiers whose cases are referred to the
board.  It also evaluates the physical condition of the Soldier against the
physical requirements of the Soldier's particular office, grade, rank, or
rating.  Finally, it makes findings and recommendations required by law to
establish the eligibility of a Soldier to be separated or retired because
of physical disability.

17.  Title 38, United States Code, sections 1110 and 1131, permits the VA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been retired for length
of service based on completion of more than 20 years of active military
service or medically retired instead of being discharged with severance pay
was carefully considered.  However, there is insufficient evidence to
support his claim.

2.  The evidence of record confirms the applicant completed a total of 18
years,
8 months, and 27 days of active military service at the time of his
discharge.  This includes active duty service in an enlisted status from 31
July 1973 through
21 March 1979 (5 years, 7 months, 21 days) and two periods of active duty
service as a warrant officer from 22 March 1979 through 21 March 1982
(3 years) and from 21 September 1988 through 26 October 1998 (10 years,
1 month, 6 days), as evidenced by four DD Forms 214 on file.  Further, in
his application for COAD, the applicant acknowledged that he had completed
more than 15 but less than 20 years of service.  As a result, there is
insufficient evidence to support the applicant's claim that he completed
more than 20 years of active military service at the time of his discharge.

3.  The applicant's contention that he should have been medically retired
was also carefully considered.  However, the evidence of record confirms he
was properly processed through the PDES and his case was properly and
thoroughly reviewed and considered by a properly constituted PEB.  It also
shows his appeal was considered and denied by the APDAB.  As a result, it
is concluded that all requirements of law and regulation were met, and the
rights of the applicant were fully protected throughout the PDES and
appellate processes. Therefore, there is an insufficient evidentiary basis
to support granting him a medical retirement at this time.

4.  In order to justify correction of a military record, the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 October 1998, the date of his
discharge. Therefore, the time for him to file a request for correction of
any error or injustice expired on 25 October 2001.  He failed to 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  __  __JLP  __  __EEM__  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                 |AR20060010101                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1998/10/26                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability with Severance Pay           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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