RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060012442 


	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.




	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 total creditable active Federal service be increased to 20 years.  

2.  The applicant states, in effect, that he was discharged while unconscious in the back of an ambulance.  He was being transferred from Madigan Army Hospital to the University of Washington Hospital for an aortic transplant.  His cardiologist acted with his wife's best interests in mind so that, if he died, his wife could receive retirement benefits instead of just collecting his life insurance.  Now that Federal law allows 100 percent disabled retirees to collect both disability and retirement pay, he is not eligible because he was retired with only 19 years of service.  He states that, but for his medical condition, he would have completed 20 years of active Federal service, and he believes the nature and condition of his discharge should allow him additional compensation.   

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his retirement order.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 October 1990, the date he was permanently retired.  The application submitted in this case is dated 31 August 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 was a Regular Army officer who served on active duty from 9 July 1970 through 30 July 1989, for a total of 19 years and 22 days.

4.  In April 1989, the applicant underwent a Groshong catheter placement and removal.  On 3 July 1989, the applicant underwent a mitral valve and aortic valve replacement.  On 18 July 1989, he underwent a right heart catheterization.  He was recommended for urgent referral to the Army Physical Disability Evaluation System (PDES) due to his ongoing grave medical problems.  
5.  On 22 July 1989, the applicant underwent a Medical Evaluation Board (MEB) which found him unfit for duty due to status post aortic valve replacement and mitral valve replacement with mechanical Medtronic Hall valves, staphylococcus epidermidis, prosthetic valve endocarditis, postoperative cardiac tamponade, and congestive heart failure.  The MEB referred him to a Physical Evaluation Board (PEB).

6.  On 29 July 1989, the applicant's wife agreed with the MEB's findings and recommendations.  She authenticated the DA Form 3947 (MEB Proceedings) with her signature for the applicant.  His medical records show that he was transferred based upon an emergency situation to the University of Washington Hospital for further treatment of bacterial endocarditis.  The Board presumes the applicant's wife had appropriate power of attorney.

7.  On 30 July 1989, the applicant underwent a PEB which found him unfit by reason of status post aortic and mitral valve replacement complicated by bacterial endocarditis.  He was rated as 100 percent disabled.  Since a permanent evaluation of the applicant's disability could not be ascertained at that time, he was placed on the Temporary Disability Retired List (TDRL.)

8.  On 30 July 1989, the applicant's wife concurred with the PEB's findings and recommendations, and waived a formal hearing of his case.  She authenticated the DA Form 199 (PEB Proceedings) with her signature.

9.  On 30 July 1989, the applicant was placed on the TDRL and advised that his condition would be reevaluated in July 1990.  

10.  On 3 July 1990, the applicant underwent a periodic medical examination as required when placed on the TDRL.  On 13 September 1990, the applicant was again considered by the PEB.  It was noted that his condition had not improved to the extent that he was fit for duty.  Although some change was anticipated, for administrative adjudication purposes, the disability was considered to have stabilized and permanent retirement was recommended.  He was found unfit by reason of status post aortic valve replacement and mitral valve replacement complicated by staphylococcus hominis infection of the prosthetic valve endocarditis with questionable aortic valve insufficiency by examination and echocardiogram.  He was rated as 100 percent disable.

11.  On 3 September 1990, the applicant concurred with the PEB's recommendations and waived a formal hearing in his case.  He signed the PEB Proceedings.

12.  On 16 October 1990, he was removed from the TDRL because of permanent physical disability and permanently retired on 17 October 1990.

13.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

14.  Army Regulation 635-40 also prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. A Soldier's name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement but for the fact his or her disability is determined not to be of a permanent nature and stable.  

15.  Title 10, U.S. Code, Section 3926, stipulates that for the purpose of determining whether a Regular or Reserve officer may be voluntarily retired, years of service are computed by adding all active service performed.  

16.  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 Department of Veterans Affairs (DVA) disability compensation for members whose combined disability rating is 50% or greater.  This provision is referred to as Concurrent Retirement and Disability Pay (CRDP.)

17.  As of 2004 this law changed so that qualified disabled military retirees will now get paid both their full military retirement pay and their VA disability compensation. This recently passed law phases out (over 9 years) the VA disability offset, which means that military retirees with 20 or more years of service and a 50% (or higher) VA rated disability will no longer have their military retirement pay reduced by the amount of their VA disability compensation.  To qualify for concurrent receipt an individual you must: 


a.  Be a Military Retiree with 20 or more years of service, including: 

(1)  Chapter 61 Medical Retirees with 20 years or more. 

(2)  National Guard and Reserve with 20 or more good years. 

(3)  Temporary Early Retirement Authority (TERA) Retirees may
      also be eligible. 

b.  Have a Service-related VA disability rating of 50 percent or higher. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his total creditable active Federal service be increased to equal 20 years.  

2.  The applicant was permanently retired due to disability after completing 19 years and 22 days of active Federal service.

3.  Although it is true that the applicant's case was urgently processed through the PDES, it was done because of his ongoing grave medical problems.  Presumably his wife had power of attorney and acted on his behalf.  However, his medical condition was reevaluated in July 1990, and when the PEB found him unfit and recommended permanent disability retirement, the applicant concurred with the PEB, did not request a formal PEB, and did not request extension on active duty.  He authenticated his July 1990 PEB Proceedings with his signature indicating that he had received a full explanation of the PEB's results and recommendations and the legal rights pertaining to his case.

4.  The Fiscal Year 2004 National Defense Authorization Act provision for CRDP became effective 14 years after the applicant retired.  To be eligible, individuals must be a Military Retiree with 20 or more years of service.  There are no provisions in law to grant the applicant nearly a year of active federal service credit for service he did not perform. 

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, there is no basis to change the applicant's record to show he has
20 years of creditable active Federal service.

 
6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 October 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
16 October 1993.  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

__kan___  __lvd___  __dkh___  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.



						Kathleen A. Newman
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012442
SUFFIX

RECON

DATE BOARDED
20070320
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
136.0200
2.

3.

4.

5.

6.