RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 7 June 2007
DOCKET NUMBER: AR20060016399
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. Michael L. Engle
Analyst
The following members, a quorum, were present:
Ms. Carmen Duncan
Chairperson
Mr. Michael J. Flynn
Member
Mr. Jeffrey C. Redmann
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 correction of her military records to show that that she was retired due to a physical disability.
2. The applicant states that her disability should have been rated at thirty percent.
3. The applicant provides no additional documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 11 April 1984, the date of her discharge. The application submitted in this case is dated 17 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 applicants failure to timely file.
3. On 21 July 1981, the applicant enlisted in the Regular Army. She completed her initial training and was awarded military occupational specialty 76V1O (Material Storage and Handling specialist).
4. On 16 February 1984, the United States Army Physical Disability Agency reviewed the applicants Physical Evaluation Board (PEB) proceedings and approved the findings. Those PEB proceedings are not available for review.
5. Orders 52-1, United States Army Medical Department Activity, Fort Hood, Texas, dated 30 March 1984, reassigned the applicant to the separation transfer point for processing. Special instructions stated that she was being separated due to a physical disability and was entitled to receive severance pay in the grade of E4 based on a ten percent disability rating.
6. On 11 April 1984, the applicant was discharged due to physical disability. She received $11,088.00 in severance pay and had completed 2 years,
8 months, and 21 days of creditable active duty.
7. In the processing of this case an advisory opinion was obtained from the Agency Legal Advisor, United States Army Physical Disability Agency (PDA), Washington, DC. He stated that the PDA had no documents or records of this case. He further stated that the applicant had not provided any evidence to support her contention that in 1984 a PEB improperly rated her medical condition(s). The PEB was reviewed by the PDA at the time and was affirmed as correct. Therefore, the presumption is that the PEBs findings were correct based upon standard business practices and the fact that the findings were properly reviewed and approved by higher headquarters.
8. On 24 April 2007, a copy of the advisory opinion was sent to the applicant for her information and opportunity to comment. No response was received.
9. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
DISCUSSION AND CONCLUSIONS:
1. The available evidence clearly shows that the applicant was medically disabled and evaluated by a PEB. She received a ten percent disability rating which was reviewed and approved by higher headquarters.
2. Based on her ten percent disability, she was discharged with severance pay. Her level of disability did not qualify her to receive a disability retirement.
3. 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 the aforementioned requirement.
4. In view of the foregoing, there is no basis for granting the applicant's request.
5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 April 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
10 April 1987. 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
___MJF __ __cd____ __JCR __ 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.
_ Carmen Duncan_____
CHAIRPERSON
INDEX
CASE ID
AR20060016399
SUFFIX
RECON
DATE BOARDED
20070607
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
. . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
108.0000
2.
3.
4.
5.
6.
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