RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 July 2007
      DOCKET NUMBER:  AR20060014647


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. James R. Hastie               |     |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 her disability retirement of 29
April 1997 be changed to show she was instead retired under Temporary Early
Retirement Authority (TERA) in effect at the time.

2.  The applicant states, in effect, that on 13 June 1996, she was approved
for retirement on 1 October 1996, under TERA provisions of the law in
effect at the time.  A subsequent medical condition required her processing
through the Army's Physical Disability Evaluation System (PDES) and
resulted in her TERA retirement orders being revoked.  As a result of an
unfitness determination and 50 percent disability rating from a Physical
Evaluation Board (PEB), she was released from active duty (REFRAD) on 28
April 1997, and placed on the Temporary Disability Retired List (TDRL).
She claims that subsequent to her disability retirement, she was determined
to be 100 percent disabled by the Department of Veterans Affairs (VA)
through 27 April 2000, at which time she stabilized and the VA awarded a 50
percent disability rating.  After further surgeries and hospitalization for
her medical condition, the VA again rated her at 100 percent disabled on 13
April 2005.

3.  The applicant states that the Fiscal Year 2006 (FY06) National Defense
Authorization Act (NDAA) accelerated the concurrent receipt phase in for
qualifying retirees rated at 100 percent disabled due to individual
unemployability, and the NDAA combined with the reason for her separation
being changed from TERA in 1997 placed her at a financial disadvantage.
She states that Title 10 of the United States Code, Section 1401b (10 USC
1401b) states that the retired pay of medical retirees will be computed at
the most favorable formula.  She is requesting this law be applied in her
case, and that her separation be changed from disability retirement to
TERA.

4.  The applicant provides the following documents in support of her
application:  Temporary Disability Retirement Orders; Separation Document
(DD Form 214); Defense Finance and Accounting Service (DFAS) Retire Pay
Account Summary; Permanent Disability Retirement Orders; Self-Authored
Statement; and Temporary Early Retirement Authority (TERA) Retirement
Orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 April 1997, the date of her retirement for placement on
the TDRL. The application submitted in this case is dated 5 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.  The applicant's record shows she was appointed a second lieutenant in
the Army Medical Department (AMEDD) of the United States Army Reserve
(USAR) on 6 February 1981, and that she entered active duty in that status
on
13 February 1981.  She was promoted to first lieutenant on 13 August 1982,
to captain on 1 August 1984, to major on 1 September 1991, and to
lieutenant colonel on 1 September 1997.

4.  An Officer Service Computation for Retirement (DA Form 7301-R), dated
14 June 1996, on file in her record shows that as of 30 September 1996, she
would have completed a total of 15 years, 7 months, and 16 days of service
for retirement percentage purposes and 15 years, 7 months, and 25 days of
service for basic pay purposes.

5.  The applicant's record shows that her request for voluntary retirement
under the provisions of the Fiscal Year 1996 (FY96) Officer Early Release
Program was approved for 30 September 1996, and announced in Department of
the Army (DA) Orders Number S111-16, dated 13 June 1996.

6.  On 16 August 1996, the applicant voluntarily requested retention on
active duty beyond her scheduled release date for PDES processing.

7.  On 26 August 1996, the applicant completed an Affidavit in which she
confirmed to have been fully advised of the rights and advantages that
could accrue to her by voluntarily remaining on active duty and she
confirmed that she desired to remain on active duty beyond her scheduled
expiration of term of service.

8.  On 30 August 1996, the applicant's request for medical retention on
active duty was approved by the Office of the Surgeon General (OTSG)
through
1 October 1996.

9.  On 23 September 1996, the applicant's TERA retirement orders were
revoked by DA Orders Number S181-8.

10.  On 24 November 1996, a Medical Evaluation Board (MEB) convened at
Walter Reed Army Medical Center (WRAMC), Washington D.C. referred the
applicant to the PEB for evaluation of her diagnosed condition of "desmoid
tumor of the abdominal wall", which was medically unfitting under the
governing regulation.

11.  On 12 February 1997, a PEB convened at WRAMC found the applicant
physically unfit and recommended a 50 percent disability and the
applicant's placement on the TDRL.  The applicant concurred with the
findings and recommendations, and the PEB was approved for the Secretary of
the Army on
6 March 1997.

12.  On 28 April 1997, the applicant was honorably retired by reason of
physical disability-temporary, and on 29 April 1997, she was placed on the
TDRL.  The separation document (DD Form 214) she was issued at the time
confirms she held the grade of major and that she had completed a total of
16 years, 2 months and 16 days of active military service.

13.  On 9 June 1997, the Defense Finance and Accounting Service (DFAS),
Cleveland Center provided the applicant a summary of her retired pay
account.  It indicated that under the provisions of Title 10 of the United
States Code, Section 1401 (10 USC 1401) the applicant eligible to receive
retired pay under two formulas.  The first method used the percentage of
disability as the percentage multiplier and the second method used years of
service as the percentage multiplier.  DFAS informed the applicant her
retired pay account had been established at the gross monthly rate which
afforded her the greatest amount (most favorable formula), and she was not
required to make an election of retired pay computation if she wished to
receive this rate.  She was further advised that if she did not respond
within 45 days, it would be viewed as an affirmation election to accept the
rate at which her account was established.

14.  On 5 March 1999, a PEB convened at WRAMC and determined that under the
provisions of Army Regulation 635-40, paragraph 7-11a(1) the applicant was
physically unfit and recommended a disability rating of 50 percent, and
that the applicant be permanently retired.

15.  On 11 March 1999, DA Orders Number D46-2 directed the applicant's
removal from the TDRL on 29 April 1997, and her permanent retirement by
reason of physical disability with a 50 percent disability rating under the
provisions of Title 10 of the United States Code, Section 1201 (10 USC
1201).

16.  In connection with the processing of this case, an advisory opinion
was obtained from the Chief, Retirements and Separations, United States
Army Human Resources Command (HRC), Alexandria, Virginia.  This official
states that a careful review of the applicant records and the applicable
TERA program was completed.  He states that at the time of the applicant's
placement on the TDRL on 28 April 1997, she was not eligible for voluntary
retirement under the TERA program.  He confirms her previously approved
TERA retirement, which was to be effective 30 September 1996, was revoked
based on the provisions of Military Personnel (MILPER) Message Number 95-
259 (FY96 Officer Early Retirement Program) based on her medical processing
through the PDES.  He further indicated that officers separated under any
other voluntary or involuntary separation program were not eligible for the
TERA program.  As a result, given the applicant was found medically unfit
for duty by the PEB and was awarded a 50 percent disability rating, her
medical retirement and placement on the TDRL made her ineligible for the
TERA program.

17.  On 7 May 2007, the applicant provided a rebuttal to the HRC advisory
opinion.  She stated that the logic in the opinion contradicts the DFAS
retired pay computation, which provides the member the highest pay formula.
 She requests that discharge review standards be applied as the withdrawal
of TERA now contradicts Title 10.  She further states the advisory opinion
does not address her reference to Title 10 of the United States Code,
Section 1401b (10 USC 1401b), nor does it address her reference to Army
Regulation 15-180.  She claims any thoughtful or logical response must
address her references to the United States Code and Army regulations, and
MILPER Messages do not supersede either of these references.  She states
that 10 USC 1401b states that the medical retirees' retired pay will be
computed using the formula most favorable to him.  She further states that
under discharge review standards outlined in Army Regulation 15-180 provide
support for her request.

18.  Public Law 102-484 provided the Secretary of the Army TERA during the
active force drawdown period by authorizing the application of voluntary
retirement provisions of the law to officers who had completed at least 15
but less than 20 years of service.  The law provided the Secretary the
discretionary authority to establish the criteria for approval of TERA
retirements.

19.  Under the Secretarial discretionary provisions of Public Law 102-484,
the eligibility criteria for retirement under the TERA program was
established in Military Personnel (MILPER) Message Number 95-259 (FY96
Officer Early Retirement Program for Army Medical Department-AMEDD).  The
message stated, in pertinent part, that officers not medically cleared
(i.e. undergoing MEB/PEB evaluation) by the requested early retirement date
would not be eligible to retire under TERA provisions.
20.  Title 10 of the United States Code, Section 1201 provides the legal
authority for disability retirement.  It states, in pertinent part, that
the retired pay of members separated by reason of disability will be
computed using the formula provided in Title 10 of the United States Code,
Section 1401 (10 USC 1401).

21.  10 USC 1401 provides the formulas for computing disability retired
pay.  It states, in effect, that retired pay will computed using the
member's prescribed retired pay base and percentage.  It further states
that if a person would otherwise be entitled to retired pay computed under
more than one formula or another provision of law, the person is entitled
to be paid under the applicable formula most favorable to him/her.

22.  Department of Defense Instruction (DODI) 1332.28 (Discharge Review
Board Procedures and Standards) issues uniform procedures and standards for
the review of discharges.  A discharge is defined as the complete severance
from all military status gained by the enlistment or induction concerned.

23.  Enclosure 4 to DODI 1332.28 provides discharge review standards and
states, in pertinent part, that a discharge shall be deemed proper unless,
in the course of discharge review, it is determined that an error of fact,
law, procedure, or discretion exists associated with the discharge at the
time of issuance and that the rights of the applicant were prejudiced
thereby (such error shall constitute prejudicial error if there is
substantial doubt that the discharge would have remained the same if the
error had not been made); or a change in policy by the Military Service of
which the applicant was a member, made expressly retroactive to the type of
discharge under consideration, requires a change in the discharge.

24.  The same DODI further states that a discharge shall be deemed to be
equitable unless in a discharge review, it is determined that the policies
and procedures under which the applicant was discharged differ in material
respects from those currently applicable on a Service-wide basis to
discharges of the type under consideration provided that current policies
or procedures represent a substantial enhancement of the rights afforded a
respondent in such proceedings; and there is substantial doubt that the
applicant would have received the same discharge if relevant current
policies and procedures had been available to the applicant at the time of
the discharge proceedings under consideration; or at the time of issuance,
the discharge was inconsistent with standards of discipline in the Military
Service of which the applicant was a member.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that she is entitled to have her disability
retirement changed to a TERA retirement under the most favorable pay
provisions of the law (10 USC 1401b) and the discharge review standards
established in DODI 1332.28, as codified in Army Regulation 15-180, were
carefully considered.  However, there is insufficient evidence to support
these claims.

2.  By law, the Secretary of the military service concerned, in this case
the Secretary of the Army, was given the discretionary authority to
establish TERA program criteria based on the needs of the service.  This
authority was delegated to HRC, and the TERA criteria, for the FY96 Officer
Early Retirement Program-AMEDD, was established in MILPER Message 95-259.
The criteria in this message was applicable to the applicant and clearly
stipulated that members who were pending review by a PEB were not eligible
for TERA retirement.

3.  The DFAS retired pay account summary on the applicant confirms the
applicant's retired pay was computed under the two formulas for which she
was eligible, which were disability percentage or years of service, and
that she retired based on the most favorable pay formula, which was
disability percentage.  As a result, there is no error or injustice related
to the applicant's retirement or to the pay formula used in computing her
retired pay.

4.  The applicant's contention that her case should be considered using
current standard provisions of DODI 1332.28, as codified in Army Regulation
15-180, was also considered; however, there is no evidence to suggest that
an error of fact, law, procedure, or discretion exists that is associated
with the applicant's retirement at the time it was issued, that the
applicant's rights were prejudiced or that there has been any change in
Army policy that would support a change to her retirement.  As a result,
absent a basic finding of error or injustice related to the applicant's
retirement, the discharge review standards alluded to by the applicant are
not applicable in this case.

5.  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 this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 April 1997, the date of her
retirement for placement on the TDRL.  Therefore, the time for her to file
a request for correction of any error or injustice expired on 27 April
2000.  She failed to 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

___JI  ___  __RML __  __JRH__  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 Infante_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014647                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/24                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1997/04/28                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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