RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 13 March 2007
DOCKET NUMBER: AR20060011214
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. Gerard W. Schwartz
Acting Director
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. William Powers
Chairperson
Mr. Paul Smith
Member
Mr. Jerome 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 that he had over 20 years of active duty when he retired.
2. The applicant states, in effect, that he is a retired veteran with a net active service of 19 years, 2 months, and 5 days. He contends that his total inactive service computes to 3 months and 5 days, that he was on the Temporary Disability Retired List (TDRL) for approximately 4 years and 8 months, and that he has a total disability rating of 100 percent service connected. He believes that his situation is unjust because he is so close [to being eligible] for Concurrent Retirement and Disability Pay (CRDP).
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which occurred on 26 June 1996. The application submitted in this case is dated 27 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 applicants failure to timely file.
3. The applicant enlisted on 22 April 1977 and served as a medical specialist and an x-ray specialist. On 26 June 1996, the applicant was released from active duty and placed on the TDRL the following day with a disability rating of 30 percent. He had completed 19 years, 2 months, and 5 days of creditable active service.
4. On 26 February 2001, the applicant was removed from the TDRL with a permanent disability rating of 100 percent and permanently retired on
27 February 2001.
5. There is no evidence of record which shows the applicant completed 20 years of active duty.
6. The Fiscal Year 2004 National Defense Authorization Act provided for phased-in restoration of the retired pay deducted from the accounts of military retirees because of their receipt of Department of Veterans Affairs (VA) compensation. CRDP applies to all retirees with VA-rated, service-connected disability of 50 percent or higher but does not apply to disability retirees with less than 20 years of service. The phased-in restoration began 1 January 2004.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows the applicant completed 19 years, 2 months, and 5 days of creditable active service when he retired. There is no evidence of record which shows the applicant completed 20 years of active duty.
2. A law providing for concurrent receipt of military retired pay and VA disability compensation passed 8 years after the applicant retired. However, the law does not apply to disability retirees with less than 20 years of service. Regrettably, the passage of a law 8 years after the applicant retired for physical disability almost 8 months short of completing 20 years of active duty is insufficient reason to grant the relief requested.
3. Records show the applicant should have discovered the alleged injustice now under consideration on 26 June 1996; therefore, the time for the applicant to file a request for correction of any injustice expired on 25 June 1999. 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
WP____ __PS____ __JP____ 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.
___William Powers_____
CHAIRPERSON
INDEX
CASE ID
AR20060011214
SUFFIX
RECON
DATE BOARDED
20070313
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
136.0000
2.
3.
4.
5.
6.
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