RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 April 2008
	DOCKET NUMBER:  AR20070011801 


	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. Lester Echols

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Larry W. Racster

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 record be corrected to show he was retired by reason of length of service with 20 years of active military service vice disability.   

2.  The applicant states, in effect, he was retired with 18 years, 2 months and 
20 days of active military service, and was not told until recently that a waiver should have been processed and he should have been retired at 20 years of service.  He claims he has been told that he should be receiving his retirement based on length of service plus disability from the Department of Veterans Affairs (VA).  He claims he was unaware of this option until 13 August 2007, at which time he was informed these years should have been waived and he should have been informed.  

3.  The applicant refers to a VA medical file; however, provides no additional documentary evidence 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 Official Military Personnel File (OMPF) is void of a processing packet containing the specific facts and circumstances surrounding the applicant's separation processing through the Army's Physical Disability Evaluation System (PDES).  The record does contain a properly constituted separation document (DD Form 214), which was authenticated by the applicant with his signature on the date of his separation, and that identifies the authority and reason for the applicant's separation.  


3.  The DD Form 214 on file confirms the applicant was honorably separated on 18 August 2004, under the provisions of Paragraph 4-24b(2), Army Regulation 635-40, by reason of Disability Temporary, and placed on the Temporary Disability Retired List (TDRL) on 18 August 2004.  It also confirms he had completed a total of 18 years, 2 months and 20 days of active military service at that time.  

4.  In connection with the processing of this case, an advisory opinion was obtained from the United States Army Physical Disability Agency (USAPDA) Legal Advisor.  This official states that the applicant was placed on the TDRL in 2004 at a 40 percent disability rating.  He further indicates that the applicant concurred in all aspects of his disability processing and waived his right to a formal hearing.  In addition, he states that the applicant indicated in block 15 of his Medical Board Proceedings (DA Form 3947), that he did not want to continue on active duty (COAD), and that on 19 May 2004, the applicant signed a Physical Evaluation Board Liaison Officer (PEBLO) Counseling Checklist/Statement, in which he confirmed he had been fully counseled concerning his rights, to include requesting COAD.  

5.  The USAPDA Legal Advisor further states that the applicant could have requested COAD to reach 20 years of service before being separated for his disabilities; however, there is no program for active duty Soldiers that allows them to waive their disability findings and automatically receive a 20 year retirement.  He further states the applicant is receiving 50 percent of his basic pay while on the TDRL, which is no less than what he would be receiving if he had a 20 year length of service retirement.  He concludes by stating that there appears to be no error regarding the applicant's placement on the TDRL, and that the applicant is currently undergoing TDRL medical reevaluation.

6.  On 21 February 2008, the applicant was provided a copy of the USAPDA advisory opinion and given the opportunity to comment on or rebut its contents.  To date, the applicant has failed to respond.  

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


8.  Chapter 6 of the disability regulation prescribes the criteria and procedures under which Soldiers who have been determined unfit by the PDES may be continued on active duty (COAD) or in active reserve status (COAR) as an exception to policy.  It provides, in pertinent part, procedures that allow an active duty Soldier who has completed more than 15 but less than 20 years of service, to request COAD.  The COAD period normally will be for any period of time up to the last day of the month in which a Soldier attains 20 years of active military service for purposes of qualifying for length of service retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that at the time of his placement on the TDRL a waiver should have been filed that would have allowed him to retire with 20 years of active military service was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, an active duty enlisted Soldier who is found unfit for further military service through the PDES, and who has completed more than 15 but less than 20 years service, may request COAD during his PDES processing.  However, there are no regulatory provisions that provide for a waiver that allows crediting a member in this category with completion of 20 years of active military service in conjunction with placement on the TDRL.  

3.  The USAPDA advisory opinion confirms the applicant concurred in all aspects of his disability processing and waived his right to a formal hearing, and that the applicant indicated that he did not want to continue on active duty in the DA Form 3947 he completed.  It further verifies that the applicant acknowledged that he had been fully counseled concerning his rights, to include requesting COAD, in the PEBLO Counseling Checklist/Statement he completed during his PDES processing.   

4.  The applicant's OMPF is void of a processing packet containing the specific facts and circumstance surrounding his processing through the PDES.  However, it does contain properly constituted DD Form 214 that documents the authority and reason for his separation and confirms he completed a total of 18 years, 
2 months, and 20 days of active military service.  The applicant authenticated this document with his signature on the date of his separation, and the DD Form 214 carries with it a presumption of Government regularity in the separation process. 


5.  In effect, the applicant's signature on the DD Form 214 was his verification that the information contained on the DD Form 214, to include his active service total, was correct at the time the separation document was prepared and issued. Absent any evidence to the contrary, it is concluded the applicant's PDES processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights, to include his right to request COAD, were fully protected throughout his PDES processing.  

6.  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 or that would support amendment of the original Board decision in this case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LE  __  __JRS __  __LWR__  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.




_____Lester Echols______
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.