RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060012835 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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 item 28 (Narrative Reason for Separation), of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to read "Retired for Length of Service (20-Year Retirement)."

2.  The applicant states, in effect, that at the time of his retirement, he was required to undergo an MEB (Medical Evaluation Board), due to his health.  He was retired for physical disability-permanent. 

3.  The applicant provides a copy of his DD Form 214 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 9 November 1983, the date he was placed on the Retired List.  The application submitted in this case is dated 31 August 2006 but was received for processing on 11 September 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 military records show he entered active duty on 24 January 1964, with prior military service in the United States Navy (USN).  The applicant successfully completed basic combat training and advanced individual training at Fort Dix, New Jersey.  On completion of his one station unit training (OSUT), he was awarded the military occupational specialty (MOS), 310, Communications Crewman.  

4.  The applicant was issued a permanent profile of 111311, on 17 December 1968, due to hearing loss, bilateral, sensorineural, secondary to acoustic trauma, LOD (line of duty), yes.  His assignment limitations were:  no assignment involving habitual or frequent exposure to loud noises or firing of weapons and for qualification firing permissible with adequate ear protection.


5.  The applicant was promoted to sergeant first class (SFC/E-7) on 1 March 1977.

6.  On 12 January 1983, the applicant was issued another permanent profile.  His profile recommended no assignment to supervisory positions (Individual experience multiple anxiety symptoms including such things as headaches, stomach distress, fast heart beat, etc.), if subject to high stress situations, especially if used as a supervisor.  

7.  On 18 July 1983, the applicant's case was considered by an MEB.  The MEB diagnosed the applicant as having:  atypical somatoform disorder, chronic, moderate, in partial remission; hypertension, essential, etiology unknown; and hearing loss, bilateral, sensorineural, secondary to acoustic trauma.  His ailments were ruled to have been incurred in LOD, while he was entitled to base pay, cause was incidental to service, none existed prior to service (EPTS), and was aggravated by active duty.  The findings and recommendations were approved on 21 July 1982. The MEB recommended that the applicant be returned to duty with permanent assignment limitations.  The MEB recommended that the applicant be referred to a PEB (Physical Evaluation Board).

8.  On 27 July 1983, the applicant appeared before an informal PEB.  The PEB found the applicant unfit to perform his assigned duties in his grade and MOS (military occupational specialty).  The PEB recommended a combined rating of 20 percent with severance pay, if otherwise qualified.  The PEB indicated that the applicant was informed that disability rating of less than 30 percent for members with less than 20 years of service required that members be separated from the service with severance pay.  The PEB noted that he had 19 1/2 years of active Federal service (AFS) for retirement purposes.  The applicant desired a formal hearing with counsel on 19 August 1983.

9.  The applicant elected to appear but did not appear before a formal PEB on 27 September 1983.  He was represented by counsel.  The PEB found the applicant unfit and recommended a combined rating of 30 percent and that he be permanently retired from the service.  The PEB found that an additional rating was warranted in consideration of formal testimony.

10.  The applicant was released from active duty on 9 November 1983 and was placed on the Retired List effective 10 November 1983, in the rank of SFC.
He had completed 19 years, 10 months, and 24 days of AFS.

11.  Item 28, of his DD Form 214, shows the entry "Physical Disability-Permanent.  He was issued a separation code of "SFJ."
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 of that regulation sets policies and procedures for voluntary retirement of Soldiers because of length of service.  

13.  Paragraph 12-3 pertains to general provisions of laws governing retirement.  It states, in pertinent part, that years of service for retirement are computed by adding all AFS in the Armed Forces and service computed under Title 10, United States (US) Code, Section 3925.  For Regular Army, ARNGUS, and USAR Soldiers retiring from an AD status, the date of retirement is the first day of the month in which the Soldier is released from AD.  For ARNGUS and USAR Soldiers not on AD, the date of retirement is the first day of the month following the month in which retirement orders are issued. 

14.  Paragraph 12-4, implements Title 10, United States (US) Code, section 3914 which governs 20-year retirement by a Soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve.  In pertinent part, the regulation provides that a request for retirement may be submitted by a Soldier who has completed 20 years, but less than 30 years, of AFS in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army.

15.  Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD (Separation Program Designator) to be used for these stated reasons.  The regulation shows that the SPD of "SFJ" as shown on the applicant’s DD Form 214 is appropriate for mandatory retirement when the narrative reason for separation is "Physical Disability-Permanent."  The SPD code of "RBD" is appropriate for voluntary retirement when the narrative reason for separation is "For Length of Service."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was issued a permanent physical profile of 111311 and appeared before an MEB.  The MEB recommended that he be returned to duty with permanent assignment limitations. He was referred to a PEB.  






2.  The applicant appeared before an informal PEB which found him unfit to perform his assigned duties in his grade and MOS.  The PEB recommended a combined rating of 20 percent, and separation from the service with severance pay.  The PEB noted that the applicant had completed 19 1/2 years of AFS for retirement purposes.  The applicant desired a formal hearing with counsel. 

3.  The applicant was represented by counsel at his formal PEB.  The PEB found the applicant unfit, recommended a combined rating of 30 percent, and that he be permanently retired from the service.  The PEB found that an additional rating was warranted in consideration of formal testimony.

4.  The applicant was released from active duty on 9 November 1983 and was  placed on the Retired List by reason of physical disability.  He was assigned an SPD Code of "SFJ" which was appropriate when placed on the Retired List by reason of physical disability-permanent.  He had completed 19 years, 10 months, and 24 days of AFS for retirement purposes.

5.  The applicant's separation authority and narrative reason for separation on his DD Form 214, dated 9 November 1983, are correct as currently constituted. 

6.  The applicant contends that item 28 (Narrative Reason for Separation), of his DD Form 214, should be changed to read "Retired for Length of Service."  The evidence shows that he was placed on the Retired List after completion of 19 years, 10 months, and 24 days of AFS based on a recommendation by a formal PEB.  There is no evidence to show that he requested to remain on active duty for an additional 1 month and 6 days in order to complete 20 years of AFS for a Regular Army retirement.  

7.  The applicant accepted the decision of the formal PEB and was placed on the Retired List with completion of 19 years, 10 months, and 24 days of AFS.  Therefore, he is not entitled to correction of item 28 (Narrative Reason for Separation), of his DD Form 214, to show the entry "Retired for Length of Service."

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 November 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 November 1986.  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

__rn____  __EM____  _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
AR20060012835
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070308
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19831109
DISCHARGE AUTHORITY
AR 635-40
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136
2.

3.

4.

5.

6.