RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 April 2007
      DOCKET NUMBER:  AR20060014576


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. John G. Heck                  |     |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 his records be corrected to show he
completed  20 years of active duty.

2.  The applicant states that at the time he was placed on the Temporary
Disability Retired List (TDRL) he was just one month short of completing 20
years of service, thus disqualifying him from receiving concurrent receipt
of retired pay (i.e., retired pay and Department of Veterans Affairs
disability compensation).  He had every intention of completing 20 years.
He was not permitted to take his remaining leave time of 38 days.  He
believes he falls under the temporary retirement category for consideration
of concurrent receipt.  He was advised that his temporary retirement orders
would extend his time past the 20-year minimum; however, he has received no
updated finalized orders that should have confirmed his official retirement
at least met the 20-year minimum.

3.  The applicant provides his TDRL orders; his DD Form 214 (Certificate of
Release or Discharge from Active Duty) for the period ending 19 February
1997; and his leave and earnings statement (LES) for the period 1 through
19 February 1997.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 February 1997.  The application submitted in this case is
dated 3 October 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.  After having had prior service, the applicant enlisted in the Regular
Army on 29 March 1977.  He served in Southwest Asia during the Persian Gulf
War from 22 October 1990 through 26 July 1991.  He was promoted to Sergeant
First Class, E-7 on 1 July 1996 in military occupational specialty 76J
(Medical Supply Noncommissioned Officer).

4.  On 10 October 1996, a Medical Evaluation Board referred the applicant
to a Physical Evaluation Board (PEB) for diagnoses of mild pulmonary
hypertension, hypertension, and pulmonary fibrosis.

5.  On 27 October 1996, a PEB found the applicant to be unfit by reason of
pulmonary fibrosis.  The PEB recommended he be placed on the TDRL with a
100 percent disability rating.  On 1 November 1996, the applicant waived a
formal hearing of his case and concurred with the findings and
recommendation.

6.  On 19 February 1997, the applicant was released from active duty after
completing a 19 years, 10 months, and 21 days of creditable active service
and was placed on the TDRL the following date.  His LES for the period 1
through    19 February 1997 shows he had 38 days of earned leave to his
credit and was paid for 30 days of unused leave (with a career total of 60
days of paid leave).

7.  On 30 September 1998, a TDRL PEB found the applicant to be unfit due to
pulmonary fibrosis and recommended his permanent disability retirement with
a 100 percent disability rating.

8.  Orders dated 19 October 1998 removed the applicant from the TDRL
effective 19 October 1998 and permanently retired him the next day.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) governs the evaluation of physical fitness of Soldiers who
may be unfit to perform their military duties because of physical
disability.  It states a Soldier may not be retained or separated solely to
increase retirement or separation benefits.

10.  The National Defense Authorization Act for Fiscal Year 2003 granted a
special payment to certain disabled retirees - Combat Related Special
Compensation (CRSC).  CRSC is payable to certain disabled retirees who have
at least 20 years of active duty or a combination of active duty and
Reserve points equaling 20 years of full-time active duty.  Those retired
for disability must still have completed at least 20 years of service in
order to meet the length-of-service requirements.  Compensation is paid for
combat-related disabilities, i.e., those incurred in combat, in a training
exercise, or in the performance of hazardous duty.  Members retired under
the temporary early retirement authority are not eligible unless the member
has been recalled to active duty long enough to accumulate 20 years or more
of service.

11.  Title 10, U. S. Code, section 1202 provides that if a member would be
qualified for retirement for disability but for the fact his disability is
not determined to be of a permanent nature and stable, the Secretary shall,
if he also determines that accepted medical principles indicate the
disability may be of a permanent nature, place the member's name on the
TDRL with retired pay computed under section 1401 of this title.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant may have had every intention of
completing 20 years of service.  Unfortunately, he developed a medical
condition that necessitated his medical retirement 39 days prior to his
completing 20 years of active duty.  A Soldier may not be retained or
separated solely to increase retirement or separation benefits.

2.  It is noted that the applicant had 38 days of earned leave at the time
he was placed on the TDRL.  The evidence of record shows he was paid for 30
of those days.  It cannot be determined from the available evidence if he
requested payment rather than the opportunity to take that leave.  Even if
he had taken that leave prior to being medically retired, however, he still
would have been retired one day short of completing 20 years of active
duty.

3.  There is no available evidence to show the applicant would have been
eligible for early retirement.  Even if he had been retired under the early
retirement authority, members retired under the temporary early retirement
authority are not eligible for CRSC unless they are later recalled to
active duty long enough to accumulate 20 years or more of service.

4.  When the applicant was placed on the TDRL on 20 February 1997, he was
retired.  The only thing the orders dated 19 October 1998 did was remove
him from the TDRL and permanently retire him.  The removal from the TDRL
and permanent retirement did not change his retirement date.  A copy of the
orders removing him from the TDRL will be provided to him.

5.  The CRSC was enacted into law in Fiscal Year 2003.  The applicant
retired for physical disability in February 1997.  The fact the CRSC was
enacted six years after he retired is an insufficient basis on which to
grant the relief requested.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 February 1997; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   18 February 2000.  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

__jns___  __dkh___  __jgh___  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.




                                  __John N. Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014576                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070419                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

-----------------------
[pic]