RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 3 July 2007
DOCKET NUMBER: AR20060012789
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 that his records be corrected to show that he served 20 years of active duty.
2. The applicant states that he was told that 19 years and 9 months of active service would result in the same retired pay as 20 years of service. However, he discovered that 19 years and 9 months is not the same as 20 years for Combat Related Special Compensation (CRSC) or concurrent receipt.
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 29 December 1987. The application submitted in this case is dated 18 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 applicants failure to timely file.
3. The applicant, serving as a still photographer in pay grade E-6, was determined physically unfit by a physical evaluation board (PEB) on 15 September 1987. The PEB recommended that the applicant be placed on the Temporary Disability Retired List (TDRL), rated 70 percent disabled. The applicant initialed the block indicating that he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.
4. Accordingly, the applicant was honorably released from active duty on 29 December 1987 and placed on the TDRL the following day. He had a total of 19 years, 9 months and 19 days of active duty.
5. On 1 November 1989, a PEB recommended that the applicant be removed from the TDRL and placed on the Retired List, rated 100 percent disabled. The applicant initialed the block indicating that he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case. Accordingly, on 15 November 1989 the applicant was removed from the TDRL and was placed on the Retired List the following day.
6. Combat-Related Special Compensation (CRSC), as established by Section 1413a, Title 10, United States Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it wasnt for the statutory prohibition for a military retiree to receive a VA disability pension. Payment is made by the Military Department, not the VA, and is tax free. Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war. Such disabilities must be compensated by the VA and rated at least 10% disabling. For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war. Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.
DISCUSSION AND CONCLUSIONS:
1. The applicant concurred with his 15 September 1987 PEBs recommendation to be released from active duty and be placed on the TDRL and waived a formal hearing of his case. It is reasonable to presume that if the applicant desired to remain on active duty he would have demanded a formal hearing at that time.
2. The applicant concurred with his 15 November 1989 PEBs recommendation to be released from the TDRL and be placed on the Retired List and waived a formal hearing of his case. It is reasonable to presume that if the applicant desired to be given the right to return to active duty he would have demanded a formal hearing at that time.
3. Based on the foregoing, it must be presumed that the applicant believed that both his placement on the TDRL and the Retired List were proper and just at the time.
4. As such, the applicant did not believe that an error or injustice existed in his placement on the TDRL or the Retired List until the laws were passed that provided for CRSC and concurrent receipt.
5. In this regard, the Board does not correct a military record strictly to establish a persons entitlement to a benefit.
6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 December 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 December 1990. 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
___ena__ ___eif___ ___swf__ 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.
_________Eric N. Andersen________
CHAIRPERSON
INDEX
CASE ID
AR20060012789
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070703
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
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