RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 November 2007
      DOCKET NUMBER:  AR20070007134


      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 T. Meixell               |     |Chairperson          |
|     |Ms. Jeanette R. McCants           |     |Member               |
|     |Mr. Scott W. Faught               |     |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 his 4 June 1985 discharge by
reason of physical disability with severance pay be voided and that the
record be corrected to show that he was instead awarded a 40 percent (%)
disability rating and placed on the Temporary Disability Retired List
(TDRL) that same date; and that he be provided all back pay and allowances
due as a result.

2.  The applicant states, in effect, that in March 1985, he underwent an
informal Physical Evaluation Board (PEB) that found him unfit for further
service and recommended a disability rating of 40% and placement on the
TDRL, which he concurred with.  He claims that within 3 weeks, the United
States Army Physical Disability Agency (USAPDA) revised the PEB's 40%
disability rating and recommended a combined rating of 20% and discharge
with severance pay.

3.  The applicant further states that his PEB Liaison Officer (PEBLO)
counselor informed him of the revised disability percentage, but did not
advise him of his right to disagree and provided no instructions on
completing a new election (DA Form 199).  Consequently, he was never
provided and did not sign a DA Form 199 issued with the revised 20% rating.
 He states that it is his belief that after the 10 day suspense went by,
the USAPDA treated the non-response as if he had concurred with the change
in disability rating revision; however, he did not concur and never had a
chance to say so.  He further states that his PEBLO counseling simply told
him of the revision and that was that.  He states that he did not feel his
PEBLO counselor properly advised him or was primarily concerned with his
interests as is required by the governing regulation.  He further states
that had his PEBLO counselor properly advised him, he would have disagreed
with the revised findings, submitted a rebuttal and asked for a formal PEB
hearing.

4.  The applicant also claims that since the PEB and USAPDA disagreed, he
also wonders why his case was not sent to the Army Physical Disability
Appeals Board for adjudication.  He states that he never felt the final
action on his case was fair, but he was a young Soldier and did not feel
free to question authority.  He states that he wishes he knew then what he
knows now.  He now requests that his PEB rating be revised back to the
original 40% and the original recommendation that he be placed on the TDRL
reinstated; and that he be provided all benefits due as a result.  He
further states that he should have been medically retired because he was
hurt on active duty and that he has continued to suffer from his service
connected injury that caused the PEB action to begin with.

5.  The applicant provides a self-authored statement in support of his
application.
CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 2 March 1984.  He was trained in and awarded
military occupational specialty (MOS) 64C (Motor Transport Operator).

3.  On 7 March 1985, a Medical Evaluation Board (MEB) convened at Gorgas
Army Community Hospital, Panama, to consider the applicant's case.  The MEB
found the applicant unfit for continued duty in a worldwide environment due
to intervertebral disc syndrome and referred the applicant's case to a PEB.

4.  On 26 March 1985, a PEB convened at Fort Gordon, Georgia, to consider
the applicant's case.  The PEB found the applicant was unfit due to
intervertebral disc syndrome, severe.  The PEB recommended a 40% disability
rating and the applicant's placement on the TDRL with reexamination during
March 1986.

5.  On 29 March 1985, the applicant concurred with the findings and
recommendations of the PEB and waived his right to a formal hearing of his
case.

6.  On 17 April 1985, the USAPDA reviewed the 26 March 1985 PEB findings
and recommendations pertaining to the applicant and determined that there
was insufficient evidence to support a rating of severe.  The USAPDA
concluded that the applicant's condition with reoccurring attacks of pain
and minimal objective findings was more appropriately rated as moderate.

7.  As a result of its medical findings, the USAPDA determined the
applicant was unfit and rated his condition as 20%.  The USAPDA further
stated that the proper disposition of the applicant was separation with
severance pay in lieu of retirement.  An unsigned member election form is
attached to the decision, which was forwarded to the applicant by cover
letter on 17 April 1985.  This election form gave the applicant the option
to disagree with the USAPDA decision and to request a formal PEB hearing at
which he could be represented by counsel.  There is no indication that this
election form was completed and returned by the applicant.

8.  On 29 May 1990, the applicant enlisted in the Army National Guard
(ARNG).  He served in this status for 4 years, 3 months and 19 days until
being honorably discharged at the expiration of his term of service on 17
September 1994.

9.  On 12 May 1995, he reenlisted in the ARNG for 3 years, and he continued
to serve in that status until being honorably discharged on 20 December
1997.

10.  In connection with the processing of this case, an advisory opinion
was obtained from the USAPDA Legal Advisor.  This official states that
there are no documents or a case file pertaining to the applicant on file
and only those documents provided with the Board application were available
for review.  He states that from the documents provided, there appears to
be no documented evidence of any error in the applicant's case.  He states
that it can be properly assumed that at the time of the applicant's
disability processing all required administrative measures were
accomplished.  This includes the PEBLO using the standard rights worksheet
which clearly outlined the applicant's rights.  A blank election form
regarding the USAPDA 20% rating may properly signify that the applicant
choose not to sign the document at that time ( a not unusual occurrence)
and does not automatically indicate that the form was not properly provided
to the applicant.

11.  The USAPDA legal advisor further states that even if not discussed by
the PEBLO, the fact that the applicant had the self-explaining election
rights provided with the 17 April 1985 memorandum from the USAPDA, which
instructed him to read, complete and return the form clearly supports that
the applicant was properly notified of the change in rating and his
options.  He further states that even had the applicant appealed, a review
of the available documentation reveals that the appeal would not have been
successful and the applicant would have remained rated at 20%.

12.  This USAPDA official also states that it should be noted that the
applicant did not provide any evidence that the USAPDA rating of 20% was
not supportable by a preponderance of the evidence.  He states that the
applicant has provided no material evidence of any error that would require
a change in the USAPDA findings or his separation.  Therefore, no change in
the applicant's military records is recommended.

13.  On 18 September 2007, the applicant was provided a copy of the USAPDA
advisory opinion in order to have the opportunity to respond.  To date, he
has failed to reply.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth the 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; and provides for the disposition of a Soldier is found
unfit because of physical disability according to applicable laws and
regulations.

15.  Section V of the disability regulation provides guidance on the review
and confirmation of PEB action.  Paragraph 4-22 contains guidance on review
by the USAPDA.  It states, in pertinent part, that the USAPDA may issue
revised findings providing for a change in disposition of the Soldier or
change in the Soldier's disability rating.  If further states that if a
Soldier fails to submit an election within the allotted time, USAPDA will
deem that the Soldier has waived their right to file a rebuttal, and the
proceedings will be forwarded to the United States Army Human Resources
Command for final action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not properly counseled regarding
the USAPDA revision of the findings and recommendations of his PEB was
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The evidence of record confirms that acting within the Agency
regulatory purview, the USAPDA issued revised findings providing for a
change in disposition of the applicant and a change in his disability
rating.

3.  Notwithstanding the applicant's assertions that he was not properly
counseled regarding his options in connection with the USAPDA revisions by
his PEBLO counselor, the evidence shows that the applicant was provided an
election form outlining his options and rights when he was notified of the
revised PEB findings and recommendations from the USAPDA.  Absent any
evidence that he completed and returned this election form within the
allotted time, it is presumed the USAPDA properly deemed that he waived his
right to file a rebuttal, and forwarded the proceedings to HRC for final
disposition in accordance with the governing regulation.

4.  The applicant's subsequent service in the ARNG, which would have
required him to be physically qualified with a waiver is further evidence
that his condition was moderate rather than severe, as indicated in the
revised PEB findings and recommendations of the USAPDA.  Therefore, it does
not appear there is a sufficient evidentiary basis to support granting the
requested relief 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JTM  __  __JRM  _  __SWF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____John T. Meixell_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070007134                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/11/29                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1985/06/04                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability with Severance Pay           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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