RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070010059 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. John Meixell

Chairperson

Ms. Jeanette McCants

Member

Mr. Scott 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 DD Form 214 be corrected to show that he completed 20 years of active service.

2.  The applicant states, in pertinent part, that he is a decorated combat veteran who served 19 years, 2 months, and 15 days of active federal service.  He states, in effect, that if he had been allowed to serve on active duty nine (9) more months, he would have attained 20 years of active federal service for retirement. He further states he was rated 100 percent permanently disabled by the Department of Veterans Affairs for his combat related injuries.  

3.  The applicant provides the following documents in support of his application to correct his DD Form 214:

	a.  a copy of a letter from the National Personnel Records Center, which verifies the applicant's awards, dated 16 October 2006; 

	b.  a copy of DA Form 3713 (Data for Retired Pay) dated 28 August 1985;

	c.  a copy of DD Form 214 (Certificate of Release or Discharge from Active Duty) with a retirement separation date of 25 August 1985; and,

	d.  a copy of General Orders Number 4508, dated 11 August 1968, published by Headquarters, 101st Airborne Division which shows the applicant was awarded the Bronze Star Medal with "V" Device for his heroic actions on 15 October 1967 in the Republic of Vietnam.

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 military records show he enlisted in the Regular Army on 13 July 1966 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 13B (Field Cannon Crewman).  Records show he served three separate tours in the Republic of Vietnam.  

3.  The highest award he received was the Silver Star.  He was awarded the Bronze Star Medal with "V" Device for his heroic actions when his battery came under fierce mortar and ground attack from enemy forces on 15 October 1967.  He delivered direct fire on the attacking forces and continued delivering direct fire after sustaining shrapnel wounds from exploding ordnance.  After the attack was suppressed, he provided medical assistance to the wounded and assisted with the evacuation of the severely wounded before seeking medical treatment for his own injuries.

4.  On 14 September 1984, the MOS/Medical Retention Board at Headquarters, XVIII Airborne Corps and Fort Bragg reviewed the applicant's personnel file.  Records show the applicant appeared before this board in person.  The Board's findings were the applicant was performing his duties in his primary MOS 13Y5P and that his permanent physical medical conditions did prevent him from performing the full range of physical tasks required of his primary MOS in a worldwide field environment.  The Board referred the applicant to the Army's Physical Disability System for medical evaluation to determine his fitness for duty. 

5.  On 23 May 1985, a Medical Evaluation Board (MEB) reviewed the applicant's case, determined that he was medically disqualified, and referred him to a Physical Evaluation Board (PEB).  The MEB diagnoses was asthma, visual loss, sensorineural hearing loss, aortic valve calcification, degenerative joint disease, multiple battleground injuries which resulted from hostile action and sensation to the right side of his face.

6.  Item number 15 of DA Form 3947 (Medical Evaluation Board Proceedings) shows the applicant did not desire to continue on active duty in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The applicant authenticated DA Form 3947 in his own hand agreeing with the MEB findings and recommendations.

7.  On 3 June 1985, the applicant's medical record and MEB proceedings were evaluated by the PEB.  The PEB recommended the applicant be given a combined rating of 30 percent disabled and determined that he was physically unfit for continued service on active duty.  The PEB recommended he be permanently retired from the service.  The unfitting medical disabilities identified were bronchial asthma, degenerative joint disease, and paralysis of fifth cranial nerve.  No single condition was found to be unfitting and two of the conditions resulted from injuries sustained while serving in combat operations. 

8.  On 5 June 1985, the applicant indicated he did not concur with the PEB findings and recommendations.  He demanded a formal hearing with personal appearance. 

9.  On 31 July 1985, the PEB reconsidered their decision of 3 June 1985.  The applicant's disabilities identified in the revised PEB are bronchial asthma, degenerative joint disease, paralysis of fifth cranial nerve, and residual effects of multiple shell fragment wounds that were rated as superficial scars, tender and painful.  The PEB findings were a combined rating of 60 percent and recommended permanent retirement from the service.  Further, the PEB stated the applicant's retirement was based on a disability resulting from injuries received in the line of duty as a direct result of armed conflict and that the injuries were incurred in line of duty during a period of war as defined by Title 26, United States Code, section 104.

10.  On 31 July 1985, the applicant authenticated in his own hand a memorandum for record, which states, in effect, that he conferred with legal counsel and that he accepted the PEB disability rating of 60 percent and permanent retirement.  

11.  On 25 September 1985, the applicant was released from active federal service due to permanent physical disability.  The DD Form 214 issued at the time confirms his separation was retirement and the narrative reason cited on the discharge document was permanent physical disability.  He had completed 19 years, 2 months, and 14 days of active federal service, which was characterized as honorable.  

12.  On 23 February 1986, the applicant submitted a request to correct his military records to show he was 100 percent permanently disabled.  He had been medically evaluated by the Veterans Administration and rated 100 percent disabled by that Agency.  

13.  On 27 February 1986, a Social Security Administration judge ruled the applicant was entitled to disability insurance benefits based on his "disability" as defined in the Social Security Act.  The judged ruled that disability insurance benefits were based on the date of 24 December 1984.

14.  On 1 May 1987, the Army Physical Disability Appeal Board concluded that the applicant's medical diagnoses were properly rated and that proper disposition occurred.  The applicant was retained on the permanent disability retirement list with a 60 percent combine disability rating.

15.  On 10 August 1988, the Army Board for Correction of Military Records (ABCMR) denied the applicant's request to correct his records to increase his physical disability percentage to 100 percent.  

16.  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 applicant contends, in effect, that he was denied the right to continue with his enlistment until he attained 20 years of active federal service.  However, the evidence shows the applicant requested on 23 May 1985, that he not be retained on active duty after an MEB found him to be medically disqualified.  

2.  The applicant has not provided any evidence or substantiating documents to show that he was denied the opportunity to continue serving on active duty until he reached 20 years of active federal service.  He elected in his own hand the option of being released from active duty should the PEB him physically unfit to continue military service.  The PEB determined he was medically unfit and recommended a combined rating of 60 percent permanent disability.  The applicant concurred with that recommendation and waived a formal hearing. Therefore, the applicant was separated and retired based on his combined permanent physical disability rating of 60 percent prior to attaining 20 years of active federal service.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JM___  ___JM __  __SF ___  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 Meixell_________
          CHAIRPERSON




INDEX

CASE ID
AR20070010059
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071129
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
129.0100
2.

3.

4.

5.

6.