RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060011357 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 that he be medically retired due to disability.

2.  The applicant states that he should have been medically retired at the time of his discharge.  He further states that he should receive all the benefits of a retiree.

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214), Physical Evaluation Board (PEB) Proceedings, and his physical profile.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 27 August 1993, the date he was placed on the Temporary Disability Retired List (TDRL).  The application submitted in this case is dated 25 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.  On 16 April 1982, the applicant enlisted in the Army National Guard of the United States.  He completed his initial training and was awarded military occupational specialty 36K1O (Tactical Wire Operations Specialist).

4.  Orders D149-22, United States Total Army Personnel Command, dated 
6 August 1993, released the applicant from duty because of physical disability incurred as a result of injury while entitled to receive basic pay and placed on the TDRL, effective 27 August 1993.  His disability was rated at forty percent.

5.  On 20 October 1994, a PEB convened to consider the applicant's medical condition.  It found the applicant to be twenty percent disabled and recommended that he be separated from the service with severance pay if otherwise qualified.  These findings were approved on 17 January 1995.

6.  Orders D60-33, United States Total Army Personnel Command, dated 
30 March 1995, removed the applicant from the TDRL and discharged him from the service effective 30 March 1995.  

7.  In the processing of this case, an advisory opinion was obtained from the Deputy Commander, United States Army Physical Disability Agency.  He states that the agency files clearly show that the applicant appealed his 5 May 1993 fit finding, and on 13 July 1993 a formal PEB found the applicant unfit for duty and placed him on the TDRL.  The applicant concurred with these findings on the same date.  The applicant appeared again before a PEB on 20 October 1994 for his TDRL re-evaluation.  The PEB recommended separation with severance pay. The applicant initially non-concurred and demanded a formal PEB.  On 
12 January 1995, the applicant withdrew his request for a formal PEB and concurred with the PEB's findings.  The Deputy Commander further stated that the applicant has not provided any evidence of improper or incorrect action or finding by the PEB.  He opined that, absent some affirmative evidence of error, it can be properly assumed that the PEB's findings were factually and administratively correct.  He recommended that there should be no change to the applicant's military records.

8.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant was found unfit for duty and placed on the TDRL with a disability rating of forty percent.  It further shows that his disability was subsequently re-evaluated, resulting in a twenty percent disability rating.  

2.  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 the aforementioned requirement.

3.  In view of the above, the applicant's request should not be granted.



4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 August 1993; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
26 August 1996.  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

__RSV __  __DLL___  __WFC _  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 F. Crain_______________
          CHAIRPERSON




INDEX

CASE ID
AR20060011357
SUFFIX

RECON
 
DATE BOARDED
20070531 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0200
2.

3.

4.

5.

6.