RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
 

	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060015351 


	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

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry W. Racster

Member

Mr. Rodney E. Barber

Member

	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, reconsideration of his request for correction of his military records to show that he completed 20 years net active service.

2.  The applicant, in effect, defers to his Counsel.

3.  The applicant provides a copy of Headquarters, 3rd Infantry Division and Fort Stewart, AFZP-JAH, Hunter Army Air Field, Georgia, memorandum, dated
13 October 2006, subject:  SFC [Applicant's Name and Social Security Number] Request for Reconsideration with 10 enclosures.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, that in the interest of justice the Army Board for Correction of Military Records (ABCMR) reconsider its original decision and correct the applicant's military service records to show that he completed
20 years net active service.

2.  Counsel states, in effect, that the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 19 March 2000, reflects only 19 years, 11 months, and 7 days net active service, although he served 20 years and 24 days on active duty.  Counsel adds that the entry on the DD Form 214 discounts 47 days lost time (related to the applicant's confinement) from the applicant's net active service.

     a.  Counsel states that the applicant personally prepared and submitted his initial application to the ABCMR for administrative correction of his military records and the ABCMR determined that his DD Form 214 was technically correct.  However, Counsel now offers new evidence demonstrating the injustice imposed on the applicant based on the applicant's diminished mental capacity, his decision to forego taking permissive temporary duty (TDY) in exchange for his time lost, and insufficient counsel on retirement.  In addition, Counsel states that the ABCMR should take into consideration the applicant's years of meritorious service to the U.S. Army and his fellow Soldiers and deliver a decision that justly accommodates his unique circumstances and distinguished career.

     b.  Counsel states that the applicant's company commander intended for him to retire from active duty with 20 years of active service.  He also states that she was under the impression that the applicant could forfeit 20 days of permissive TDY in exchange for creditable service against his 47 days of lost time and neither she nor the applicant ever received notification that the request was disapproved.  Counsel offers a letter from the applicant's former company commander, along with a DA Form 4187 and DA Forms 31, in support of the argument.

     c.  Counsel states, in effect, that at the time of the applicant's retirement, his medical assessment revealed that he suffered from major depression disorder and he has since been declared a schizophrenic, with his condition being service-connected.  Counsel also states that schzophrenics suffer from impaired judgment, impaired cognition, intermittent hallucinations, thought disorganization, and mood fluctuations.  Counsel further states that the applicant's psychiatrist "affirms that [the applicant] more probably than not failed to comprehend his
DD [Form] 214 submission's disastrous effect."  Counsel offers a letter from the applicant's doctor, a staff psychiatrist at the Department of Veterans Affairs Medical Center, Augusta, Georgia, in support of the argument.

     d.  Counsel states, in effect, that the applicant intended to retire with 20 years net active service and actually served beyond his 20-year mark (i.e., from February 1980 until March 2000).  Counsel also states that the applicant believed he had successfully exchanged his permissive TDY entitlement for his lost time and had sufficient qualifying service for a 20-year retirement.  He adds that the applicant "had no reason to believe the exchange was not accepted" and "returned his permissive TDY to the government, who appropriately discharged it."  Counsel offers that "[s]peaking English as a second language, [the applicant] did not comprehend the word "net" and thought the DD [Form] 214 accurately reflected his 20 years of service."  Counsel further states, in effect, that the applicant, under a substantially diminished mental capacity believed he successfully completed his career and received no warning from transition office officials regarding the detrimental effect his record of service (as shown on the DD Form 214) would have on his post-service entitlements and benefits.  Counsel maintains that the applicant failed to accurately comprehend his
DD Form 214 and its effect on his retirement.

     e.  Counsel states, in effect, that the applicant "never received any counseling before he entered the temporary or permanent disability lists" and "signed forms without knowing his right to complete his 20 years on active duty."  He adds that under normal circumstances the applicant could have returned to active duty to finish his 20 years of service; however, his condition has worsened and he does not have sufficient mental health to renter military service.


     f.  Counsel asks the ABCMR to consider the applicant's faithful and dedicated service to his Soldiers, the Army, and his country.  Counsel offers information pertaining to the applicant's background that led to his difficulties early on in his Army career, describes how he persevered and overcame his obstacles, and adds that the applicant served in Operation Desert Shield/Storm, led many Soldiers during his service, and completed a celebrated career in the Army.

     g.  Counsel concludes by requesting that the ABCMR waive the statute of limitations requirement and, considering the applicant's circumstances and in the interest of justice, honor the applicant's years of service by correcting his records to show that he completed 20 years net active service.

3.  Counsel provides a copy of a DA Form 4187 (Personnel Action), dated
12 April 1999, subject:  Request for Retirement; DD Form 214, with an effective date of 19 March 2000; Department of Veterans Affairs, Medical Center, Augusta, Georgia, letter, dated 5 October 2006; Department of the Army, memorandum, dated 10 October 2006, subject:  SFC [Applicant's Name]
DD [Form] 214 Appeal (with 2 enclosures); 2 DA Forms 31 (Request and Authority for Leave), both dated 14 December 1999; Headquarters, U.S. Army Physical Disability Agency, Walter Reed Army Medical Center, AHRC-DOE, Washington, DC, memorandum, dated 8 March 2005, subject:  Transmittal of Separation Documents; DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 25 February 2005; Clarion Psychiatric Center, Psychiatric Evaluation, dated 13-15 January 2000; a 3-page listing of the applicant's military education, awards and decorations, and certificates recognizing achievement; Defense Finance and Accounting Service, Kansas City, Kansas City, Missouri, letter, dated 14 December 2004 (with enclosures); Headquarters, ABCMR, Arlington, Virginia, Record of Proceedings, Docket Number AR 20050001104, dated 13 October 2005; and copies of medical records pertaining to the applicant obtained from the Texas PEB on 25 October 2005. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050001104 on 13 October 2005.

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 service records show that he initially enlisted in the U.S. Army Reserve on 16 January 1980 for a period of 6 years and entered active duty in the Regular Army on 26 February 1980 for a period of 4 years.  He served continuously until his release from active duty on 19 March 2000 and was placed on the Temporary Disability Retired List (TDRL), effective 20 March 2000, with a 40 percent disability rating.  At that time, the applicant had completed
19 years, 11 months, and 7 days net active service that was characterized as honorable and he had 47 days of time lost due to confinement.

4.  The applicant's records show that he served in Saudi Arabia in support of Operation Desert Shield/Storm from 8 December 1990 to 23 April 1991.  

5.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

6.  The applicant's military service records contain copies of DA Forms 2166-7 (Noncommissioned Officer Evaluation Reports (NCO-ER)) that were prepared to document his duties, NCO responsibilities, values, performance, and potential during his military career.  A review of the last 5 NCO-ER filed in the applicant's Official Military Personnel File (OMPF) spanning the period February 1995 through October 1998 show, in pertinent part, that the applicant was rated fully capable and among the best by his raters and consistently received successful and superior ratings from his senior raters.  The NCO-ERs contain no adverse information.

7.  The applicant's military service records contain a copy of Headquarters,
3rd Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, Georgia, Orders 347-0009, dated 13 December 1999.  These orders show, in pertinent part, that the applicant was released from active duty on 19 March 2000 and placed on the TDRL, effective 20 March 2000, in the grade of rank of sergeant first class/pay grade E-7.  These orders also show, in pertinent part, that for purposes of disability retirement and Title 10, United States Code, section 1405, the applicant was credited with 19 years, 11 months, and 7 days service.  The orders further show that for basic pay purposes the applicant was credited with 20 years, 0 months, and 17 days service.


8.  The applicant's military service records contain a copy of his DD Form 214, with an effective date of 19 March 2000.  Item 12 (Record of Service - Years, Months, Days) of the applicant's DD Form 214 contains the following entries: Block a (Date Entered AD (Active Duty) This Period) "1980 02 26"; Block b (Separation Date This Period) "2000 03 19"; and Block c (Net Active Service This Period) "0019 11 07".  Item 29 (Dates of Time Lost During This Period) of the
DD Form 214 shows the entry "UNDER 10 USC 972:  19810821-19811006", indicating that the applicant had time lost during the period 21 August 1981 through 6 October 1981, which equates to 47 days of non-creditable service.

9.  The applicant's medical records, including the results of his Medical Evaluation Board (MEB) and his Physical Evaluation Board (PEB) are not filed in his OMPF.  Coordination with the U.S. Army Physical Disability Agency (USA PDA), Washington, DC, revealed that the USA PDA does not have a complete case file on the applicant.

10.  In support of the applicant's application, Counsel provides, in pertinent part, the following documents.

     a.  DA Form 4187, dated 8 April 1999, that shows the applicant requested retirement, effective 26 February 2000.  This document also shows the entry "Soldier is paying to the Army 47 days loss time with 20 days permissive TDY."  This DA Form 4187 was signed by the applicant's company commander, who recommended approval of the request on 12 April 1999.

     b.  DA Form 31, dated 14 December 1999, that shows the applicant requested 20 days permissive TDY, from 21 December 1999 to 9 January 2000. 
This document also shows that it was signed by the approving authority.

     c.  DA Form 31, dated 14 December 1999, that shows the applicant requested 70 days terminal leave, from 10 January 2000 to 19 March 2000.  This document also shows that it was signed by the approving authority.

     d.  DA Form 199 (PEB), dated 25 February 2005, that shows a PEB was convened on 25 February 2005.  The PEB proceedings describe, in pertinent part, the applicant's disability as schizoaffective disorder requiring psychotropic medication and outpatient treatment, unemployed, persistent psychotic symptoms; rated as definite social and industrial impairment, with a recommended disability percentage of 30 percent.  This document also describes two other conditions (i.e., low back pain without neurologic abnormality, thoracolumbar range of motion limited by pain, tenderness, muscle spasm, antalgic gait; and left (non-dominant) shoulder pain without significant neurologic abnormality, left shoulder abduction pain, rated as slight and constant) were also considered by the PEB, with recommended disability percentages of 20 percent and 10 percent, respectively.  The PEB recommended a combined rating of
50 percent and the applicant's permanent disability retirement.  Item 13 (Election of Soldier) of the DA Form 199 shows that on 3 March 2005, the applicant acknowledged being advised of the findings and recommendations of the PEB and that he received a full explanation of the results of the findings and recommendations and his legal rights pertaining thereto.  The applicant initialed and signed Item 13 of the document indicating he concurred and waived a formal hearing of his case.  The PEB proceedings were approved for the Secretary of the Army on 8 March 2005.

     e.  Copies of medical records pertaining to the applicant obtained from the Texas PEB on 25 April 2005.  These records, in pertinent part, document the applicant's MEB, TDRL evaluation, periodic physical examinations, PEB, and permanent disability retirement.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 Army regulation provides for disposition of the Soldier according to applicable laws and regulations.

12.  Army Regulation 635-40, paragraph 3-8 (Counseling provided to Soldier), provides that the appointed Physical Evaluation Board Liaison Officer (PEBLO) at the medical treatment facility (MTF) is responsible for counseling Soldiers (or the next of kin or legal guardian in appropriate cases) concerning their rights and privileges at each step in disability evaluation, beginning with the decision of the treating physician to refer the Soldier to a MEB and until final disposition is accomplished.  For this purpose, the MTF commander will name an experienced, qualified officer, noncommissioned officer (NCO), or civilian employee as the PEBLO.  At least one additional qualified officer, NCO, or civilian employee will be designated as alternate PEBLO.  Only personnel whose duties will not conflict with their counseling responsibilities will be selected.  The MTF commander will notify the recorder of the applicable PEB of the name and telephone number of the PEBLO and alternate PEBLO.  PEBLOs will use the Disability Counseling Guide (Appendix C) to assist them in providing thorough counseling.  Counseling will be documented.  Counseling will cover as a minimum, the following areas:
(1) legal rights (including the sequence of and the nature of disability processing); (2) effects and recommendations of MEB and PEB findings; (3) estimated disability retired or severance pay (after receipt of PEB findings and recommendations); (4) probable grade upon retirement; (5) potential veteran's benefits; (6) recourse to and preparation of rebuttals to PEB findings and recommendations; (7) Disabled Veterans Outreach Program (DVOP); and
(8) post-retirement insurance programs and the Survivor Benefit Plan (SBP).

13.  Army Regulation 635-40, paragraph 3-10 (Continuation on active duty or continuation on active Reserve status of Soldiers determined unfit due to physical disability) provides, in pertinent part, that a Soldier determined unfit due to physical disability by the Physical Disability Evaluation System (PDES) may be deferred from disability separation or retirement when it is determined that the Soldier can still serve effectively with proper assignment limitations.  The Secretary of the Army, or their designee, may direct an involuntary continuation on active duty (COAD) or continuation on active Reserve status (COAR) when the Soldier's service obligation, or special skill and experience justify an involuntary continuation.

14.  Army Regulation 635-40, paragraph 4-15 (Action following approval of a medical evaluation board report), provides, in pertinent part, that a Regular Army Soldier with over 18, but less than 20 years of active service and is referred to a PEB be counseled on their right to request COAD.  The Soldier or the PEBLO will make his or her election in writing, either requesting or declining COAD, and the MTF commander will include the Soldier's statement as an allied document to the MEB proceedings.

15.  Army Regulation 635-40, Chapter 6 (Continuation on Active Duty and Continuation on Active Reserve Status of Unfit Soldiers), prescribes the criteria and procedures under which Soldiers who have been determined unfit by the PDES may be COAD or COAR, as an exception to policy.  (This provision is referred to as "permanent limited duty.")  A Solider who is physically unqualified for further military service has no inherent or vested right to continuation.  Continuation in a military status is generally subject to the Soldier's consent.  However, the Secretary of the Army (SA), or their designee, may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation.  Normally, a COAD will be for any period of time up to the last day of the month in which the Soldier attains 20 years of active federal service for purposes of qualifying for length of service retirement under Title 10, United States Code, Section 3911 or 3914 (10 USC 3911 or 3914).  Normally, a COAR will be for any length of time up to the minimum time required for the Soldier to be issued and receive the 20-year letter of qualifying service for purposes of qualifying for nonregular retirement under Title 10, United States Code, Section 12731 (10 USC 12731).

16.  Army Regulation 635-40, paragraph 6-7 (Qualification and process for continuation on active duty and continuation on active Reserve status) provides that to be considered for COAD or COAR, a Soldier must be: (1) determined unfit by the PDES for a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence; (2) basically stable or have a disability that is of slow progression according to accepted medical principles; (3) physically capable of performing useful duty in an MOS for which currently qualified or potentially trainable (to include reclassification); or
(4) eligible under one or more of the criteria listed below: (a) for COAD, have 15, but less than 20 years of active federal service; for COAR, have a total of 15, but less than 20 years of qualifying service for nonregular retirement; (b) qualified in a critical skill or shortage MOS.  Such qualification must be confirmed in writing by the applicable personnel office and attached to the request; or (c) disability resulted from combat or terrorism.  The application must be forwarded with either the MEB or with the Soldier's election to the informal findings within the prescribed election time frame.

17.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  Paragraph 5-33 (Rules to use permissive temporary duty) provides that PTDY is a nonchargeable absence from duty that may be granted at no expense to the Government to perform a semi-official activity that benefits the Service and the Soldier.  This Army regulation also provides, in pertinent part, that transition PTDY is authorized for Soldiers being released from active duty under conditions described in this paragraph.  It is an authorization, not an entitlement.  The purpose of transition PTDY is to facilitate transition into civilian life for house and job hunting for Soldiers being involuntarily separated, retiring from active duty, or separating under the Voluntarily Separation Incentive (VSI) or Special Separation Benefit (SSB) program.  Permissive TDY is a nonchargeable absence and an option for eligible Soldiers. 

18.  Department of Defense (DOD) Financial Management Regulation 
7000.14-R provides statutory provisions for entitlement, deductions, and collections, and establishes DOD policy on the pay and allowances of military personnel.  Paragraph 010102, Table 1-2, of this regulation states that when an absence is due to confinement of more than 1 day while awaiting trial (if the trial results in conviction) or confinement as the result of a court-martial sentence then the period of service is not creditable service.

19.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), Enlisted/Officer Record Brief (ERB/ORB), separation approval authority documentation or order, or any other document authorized for filing in the OMPF.

20.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, contains item-by-item instructions for completing the
DD Form 214.  The instructions for Item 12 (Record of Service), specify, in pertinent part, for Block a (Date Entered AD This Period) enter the beginning date of the continuous period of AD for issuance of this DD Form 214; Block b (Separation Date This Period) enter the Soldier's transition date; Block c (Net Active Service This Period) enter the amount of service this period, computed by subtracting Item 12a from Item 12b (lost time under 10 United States Code 972 and non-creditable time after expiration of term of service, if any, are deducted); Block d (Total Prior Active Service) enter the total amount of prior active military service, less time lost, if any; and Block e (Total Prior Inactive Service) enter the total amount of prior inactive military service, less time lost, if any.

21.  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 percent or greater.  This provision is referred to as Concurrent Retirement and Disability Pay (CRDP).  Members retired under disability provisions (10 U.S. Code, chapter 61) must have 20 years of service.

22.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his Counsel contend, in effect, that in the interest of justice the ABCMR should reconsider its original decision and correct the applicant's military service records to show that he completed 20 years net active service The bases of the request is their contention that the applicant forfeited 20 days PTDY in exchange for creditable active duty service, he received insufficient counseling during his physical disability and retirement processing, and the diminished mental capacity of the applicant.

2.  The evidence of record shows that the applicant submitted a request for retirement on 8 April 1999, requesting retirement in February 2000, and that he was "paying to the Army 47 days loss time with 20 days permissive TDY."  The evidence of record also shows that the applicant's company commander recommended approval of the request on 12 April 1999.  However, the evidence of record fails to show that this request was ever acted upon by the approval authority.

3.  The evidence of record shows that, on 14 December 1999, the applicant requested 20 days permissive TDY, from 21 December 1999 to 9 January 2000. The evidence of record also shows that this request was submitted in conjunction with the applicant's request for terminal leave (i.e., from 10 January 2000 to
19 March 2000).  The evidence of record further shows that both of these requests were approved, which granted the applicant a 90-day period of authorized absence prior to the date he was retired from the Army (i.e., on
19 March 2000) based on a temporary disability and prior to being placed on the TDRL, effective 20 March 2000.  In addition, the evidence of record shows that the applicant personally requested 20 days PTDY more than 8 months after he previously requested "paying to the Army 47 days loss time with 20 days permissive TDY."  Moreover, in a self-authored statement in his original application to this Board the applicant wrote "…but I know that I was in permissive TDY and terminal leave for 100 days more or less…"  Therefore, the evidence of record fails to show the applicant forfeited 20 days PTDY, but instead indicates that the applicant did, in fact, utilize 20 days of authorized PTDY prior to his retirement from the Army.

4.  The evidence or record shows that PTDY is an authorization, not an entitlement.  The evidence of record also shows that PTDY is a nonchargeable absence from duty that may be granted at no expense to the Government (emphasis added) to perform a semi-official activity that benefits the Service and the Soldier.  There are no provisions in the Army regulations, and the applicant and his Counsel provide no evidence, to show that PTDY may be exchanged for lost time.  Therefore, the applicant and his Counsel provide insufficient evidence to support their claim that the applicant should be granted creditable active service in exchange for 20 days PTDY.

5.  The evidence of record shows that the applicant was determined unfit for military service by the PDES for a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence; he was physically and mentally capable of performing duty in his MOS (as substantiated by his NCO-ERs and company commander's statement); and was an RA Soldier with more than 18, but less than 20 qualifying years of service for non-regular retirement, which made him eligible for consideration of COAD.  Therefore, the applicant should have been counseled and afforded the opportunity to request COAD for a period of time up to the last day of the month in which he attained 20 years of active federal service (i.e., through 30 April 2000) for purposes of qualifying for length of service retirement.

6.  In the review of this case, the USA PDA acknowledged that it does not have a complete copy of the applicant's MEB/PEB case file.  Nevertheless, this Board presumes regularity in the processing of the applicant's case with respect to the applicant's disability rating by the PEB and that both his temporary disability retirement and permanent disability retirement were proper.  However, based on the fact that the applicant had more than 18 years of active service at the time he was being processed through the Army's PDES, he should have been counseled regarding his option to request COAD.  The applicant's OMPF and USA PDA MEB/PEB case files fail to substantiate that the applicant was counseled regarding COAD.  There is no evidence that the applicant was made aware of any COAD options, or that COAD options were discussed with him by the PEBLO.  As a result, the applicant was improperly denied the option to request retention until completing the 20 years of active military service necessary to qualify for length of service retirement.  Thus, it would be appropriate and serve the interest of justice and equity to grant the requested relief.

7.  Therefore, in view of the facts of this case, it would be appropriate to correct the date that the applicant was released from active duty and transferred to the TDRL.  As a result, his records should be corrected to show he was retained on active duty under the COAD provisions of the governing law and regulation until 30 April 2000, which is the last day of the month during which he completed
20 years of active military service.  It would also be appropriate to show he was released from active duty on 30 April 2000 and placed on the TDRL, effective
1 May 2000.

8.  As a result of the foregoing correction, the applicant should be provided all active duty back pay and allowances (less any withholdings and/or deductions) for the period 20 March 2000 through 30 April 2000, minus any disability retired pay he received during that period while he was on the TDRL.  He should also be provided all disability retired back pay due from 1 May 2000 to the present (less any withholdings and/or deductions), factoring in his additional creditable active duty service and length of service for pay, minus any temporary and permanent disability retired pay he received during this period.
9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 March 2000; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
18 March 2003.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__MKP __  __LWR__  ___REB    GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation of partial relief and amendment of the ABCMR’s decision in Docket Number AR20050001104, dated 13 October 2005, and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  showing he was approved for continuation on active duty through 30 April 2000, the last day of the month during which he completed 20 years of active military service;

     b.  showing he was released from active duty on 30 April 2000 and that he was placed on the Temporary Disability Retired List, effective 1 May 2000;

     c.  correcting the applicant's DD Form 214, as follows:

	(1)  Item 12, Block b.  Separation Date This Period
				   Delete:  "2000  03  19"
				   Add:      "2000  04  30"

	(2)  Item 12, Block c.  Net Active Service This Period
				   Delete:  "0019  11  07"
				   Add:      "0020  00  18"

     d.  amending/endorsing Headquarters, 3rd Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, Georgia, Orders 347-0009, dated 13 December 1999, to reflect necessary corrections resulting from the above actions, to include that for basic pay the applicant was credited with 20 years, 01 month, and 28 days service.

2.  As a result of the foregoing corrections, the Defense Finance and Accounting Service (DFAS) shall be notified of the Board's determination and:

     a.  conduct a review of the applicant's active duty and physical disability retired pay accounts, which considers this additional RA active duty creditable service from 20 March 2000 through 30 April 2000;

     b.  notify the applicant of the results of the review concerning his active duty and disability retired pay accounts; and

	(1)  provide him all active duty back pay and allowances (less any withholdings and/or deductions) due for the period 20 March 2000 through
30 April 2000, minus any disability retired pay he received while he was on the TDRL during this period; and

	(2)  provide him all disability retired back pay due from 1 May 2000 through the present (less any withholdings and/or deductions), factoring in his additional creditable active duty service and length of service for pay, minus any temporary and permanent disability retired pay he received during this period.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the applicant's request for creditable active service in exchange for 20 days permissive temporary duty.




_____Margaret K. Patterson____
          CHAIRPERSON


INDEX

CASE ID
AR20060015351
SUFFIX

RECON
2007/03/15
DATE BOARDED
20051013
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20000319
DISCHARGE AUTHORITY
AR 635-40, Paragraph 4-24b(2)
DISCHARGE REASON
Disability, Temporary
BOARD DECISION
GRANT 
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
123.0600.0000
2.
136.0200.0000
3.

4.

5.

6.