RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 June 2007
      DOCKET NUMBER:  AR20070002837


      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:

|     |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 that his retirement date be changed from 20 May
1992 to 15 December 1995.

2.  The applicant states he was in a coma when the Army retired him and he
was unable to sign his DD Form 214 (Certificate of Release or Discharge
from Active Duty).  That date has stopped him from receiving his G. I. Bill
education benefits. It has also affected his retired pay by not crediting
him with the years he really served.

3.  The applicant provides orders removing him from the Temporary
Disability Retired List (TDRL), dated 15 December 1995; a Certificate of
Retirement, dated 16 December 1995; two DD Forms 214; a letter dated 14
September 2001, from the Department of Veterans Affairs; and copies of his
service medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 December 1995, the date he was removed from the TDRL.  The
application submitted in this case is dated 22 April 2006 but was received
in this office on   23 February 2007.

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 prior service, the applicant enlisted in the Regular Army
on         17 November 1981.

4.  In April 1992, the applicant underwent surgery after discovery of a
rectal carcinoma.  His postoperative course was complicated by several
episodes of hemodynamically significant lower gastrointestinal bleeding,
septic shock, renal insufficiency, pulmonary embolus, and respiratory
insufficiency requiring tracheostomy.


5.  On 20 May 1992, a Medical Evaluation Board (MEB) referred the applicant
to a Physical Evaluation Board (PEB) for a diagnosis of rectal carcinoma.
The MEB noted that he was not mentally competent for pay purposes and did
not have the capacity to understand the nature of and to cooperate in PEB
proceedings.

6.  On 20 May 1992, an informal PEB recommended the applicant be placed
on the TDRL due to a diagnosis of rectal carcinoma with septic shock with a
   100 percent disability rating.  The applicant’s spouse, as his next of
kin, concurred with the PEB’s recommendation.

7.  On 20 May 1992, the applicant was placed on the TDRL after completing a
total of 13 years, 6 months, and 4 days of creditable active service plus 2
years, 2 months, and 12 days of additional service for pay.

8.  On 5 August 1993, a PEB found that the applicant had significant
improvement while on the TDRL; however, his condition was not sufficiently
stable to make a permanent disposition.  The PEB recommended he remain on
the TDRL.

9.  Around October 1994, a TDRL re-evaluation found the applicant to be
stable without evidence of recurrent disease.  However, the multiple
incisional hernias (incurred as a result of abdominal surgeries needed to
treat the cancer) prevented him from doing any sort of physical labor and
prevented him from lifting over five pounds.

10.  On 30 June 1995, an informal PEB found the applicant to be unfit due
to multiple abdominal incisional hernias status post anterior resection of
the rectum and recommended he be permanently retired with a 40 percent
disability rating.  The applicant did not concur with the findings of the
informal PEB and demanded a formal hearing.

11.  On 31 October 1995, a formal PEB found the applicant to be unfit due
to abdominal wall impairment due to multiple abdominal incisional hernias
status post anterior resection of the rectum with a 50 percent disability
rating and for status post anterior resection of the rectum with residual
pain and diarrhea with a 10 percent disability rating.  The formal PEB
recommended he be permanently retired with a combined disability rating of
60 percent.  The applicant did not respond to the findings of the formal
PEB.

12.  On 15 December 1995, the applicant was removed from the TDRL and
permanently retired the following day.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  In pertinent part, it states a Soldier's name may be
placed on the TDRL when it is determined that the Soldier is qualified for
disability retirement but for the fact that his or her disability is
determined not to be of a permanent nature and stable.

14.  Title 10, U. S. Code, section 1202 provides that if a member would be
qualified for retirement for disability but for the fact that 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 that 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.

15.  Army Regulation 635-5 prescribes the separation documents prepared for
Soldiers upon retirement, discharge, or release from active military
service or control of the Army.  In pertinent part, it states the DD Form
214 is a synopsis of the Soldier’s most recent period of continuous active
duty.  It provides a brief, clear-cut record of active Army service at the
time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant was in a coma when the Army
retired him in May 1992.  However, that was one of the reasons why the Army
did retire him.  He was placed on the TDRL because he was qualified for
disability retirement, but he was not permanently retired because his
disability was determined not to be of a permanent nature and stable.

2.  Nevertheless, the applicant was in fact retired on 20 May 1992 and
began to draw retired pay.  He never returned to active duty.  The only
event that occurred on 15 December 1995 was that his temporary retirement
was made permanent.  There is no error in the date of his retirement.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 December 1995; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   14 December 1998.  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

___cd___  __mjf___  __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                 |AR20070002837                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070607                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |108.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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