RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060016883 


	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:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 his military records to show that he completed 20 years of service.  

2.  The applicant states, in effect, that he is lacking 90 days service to qualify for concurrent receipt of both his Army retirement and the Veterans Affairs (VA) disability payment.  He says that he was placed on the Temporary Disability Retired List (TDRL) in 1998.  In 2001 and 2005 he had liver transplants and was placed on the Permanent Disability Retired List (PDRL).  He feels a terrible injustice has been committed because he was not counseled when leaving the Army about the benefits for those having less than 20 years of service.  He also states that he was not afforded the opportunity to get the additional 90 days of service.  He further states that he was dedicated and worked very hard all those years in the service and hopes that the Army will be merciful and somehow allow him the 90 days necessary to be able to qualify for concurrent receipt.   

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 23 March 1998, the date of his disability retirement.  The application submitted in this case is dated 13 November 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.  On 21 June 1978, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 
76Y1O (Unit Supply Specialist).  He continued to serve through a series of enlistments and attained the rank of sergeant first class, pay grade E7.  He had completed 19 years, 9 months, and 3 days of creditable active duty.

4.  In 1995, the applicant was diagnosed with liver disease and was informed that the doctors were suggesting that he be medically retired.  
5.  On 6 July 1995, the applicant wrote a memorandum to the Commander, United States Army Medical Command, Fort Knox, Kentucky, acknowledging his illness and asking that if he had to be medically retired that  consideration be given for his wife, mortgage, and three children when deciding his percentage of disability.

6.  On 27 September 1995, a Physical Evaluation Board (PEB) convened to consider the applicant’s condition.  It found that he was fit for duty within the limits of his physical profile.  The applicant concurred with the finding.  This finding was approved on 7 October 1995.

7.  On 15 August 1997, a PEB convened to consider the applicant’s condition.  It noted that even though he had missed much duty time due to medical appointments, he was relatively asymptomatic, capable of performing the duties of his MOS, and could do a regular Army physical fitness test.  It found him fit for duty within the limits of his physical profile.  The applicant concurred with the finding.  This finding was approved on 2 October 1997.

8.  On 29 January 1998, a PEB convened to consider the applicant’s condition.  The proceedings are not available for review.  However, the Physical Disability Agency worksheet indicates that it found him to be unfit for duty.  The applicant’s election is not available.  The finding was approved on 23 March 1998.   

9.  Orders 061-0191, United States Armor Center and Fort Knox, Fort Knox, Kentucky, dated 2 March 1998, placed the applicant on the TDRL effective 
23 March 1998 with a fifty percent disability rating.

10.  On 23 December 1999, the applicant’s medical condition was reevaluated. The proceedings are not available for review.  However, the Physical Disability Agency worksheet indicates that he was retained on the TDRL.  The applicant’s election is not available.  The finding was approved on 6 January 2000.   

11.  On 26 July 2001, the applicant’s condition was again reevaluated.  The proceedings are not available for review.  However, the Physical Disability Agency worksheet indicates that he was removed from the TDRL and placed on the PDRL.  The applicant’s election is not available.  The finding was approved on 15 August 2001. 

12.  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 VA disability compensation for members whose VA disability rating is fifty percent or greater.  This provision is referred to as Concurrent Retirement and Disability Pay (CRDP).  The provisions of this law were changed so that qualified disabled military retirees receive their full military retirement pay and their VA disability compensation.  To qualify for concurrent receipt members must be either an active duty military retiree with 20 or more years of service or a National Guard or Reserve Component Soldier with 20 or more qualifying years for retirement.  Service members retired under disability provisions must also have 20 or more qualifying years of service.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant suffered from a disabling liver condition and after several medical board evaluations he was found to be unfit for duty.  He was initially placed on the TDRL and subsequently moved to the PDRL.  He had completed less than 20 years of service at the time he was medically retired.

2.  There is no available evidence showing that the applicant concurred or non-concurred with the decision to medically retire him in 1998.  There is no available evidence showing that he elected to remain on active duty, or that such an election was denied.

3.  In view of the above, the applicant’s request should not be granted.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 March 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
22 March 2001.  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

___RSV __  __DLL___  __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
AR20060016883
SUFFIX

RECON

DATE BOARDED
20070531
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
 DENY
REVIEW AUTHORITY

ISSUES         1.
110.0100
2.

3.

4.

5.

6.