IN THE CASE OF:	  

		BOARD DATE:	       18 September 2008

		DOCKET NUMBER:  AR20080009731 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of the following items on his DD Form 214 (Report of Separation from Active Duty) for the period ending 29 September 1974 to read:

* Item 9a (Type of Separation) - “Retirement”;
* Item 9c (Authority and Reason) - “Permanent Medical Retirement, Due to 
Combat-Related Disabilities”;
* Item 9d (Effective Date) - “78-07-01”; and 
* Item 9f (Type of Certificate Issued) - “Retirement.”

2.  The applicant also requests that his Certificate of Retirement be corrected to show he was medically retired on “78-07-01” in accordance with Title 10, United States Code, sections 1201 to 1221 by reason of “Permanent Medical Retirement.”

3.  The applicant states, in effect, that his DD Form 214 for the period ending 29 September 1974, was issued prematurely when he was placed on the Temporary Disability Retired List (TDRL) and that, in effect, he requests these corrections be made to allow him to apply for Combat-Related Special Compensation (CRSC).  He gives a brief summary of the incidents which surrounded the injuries to both of his hips, shoulders, feet, neck, and back.  

4.  The applicant provides a copy of his Certificate of Retirement, dated 1 July 1978; his Orders D112-13, dated 8 June 1978, removing him from the TDRL; his DD Form 214 for the period ending 29 September 1974; a letter from a retired warrant officer, dated 23 May 1995; his Physical Evaluation Board (PEB) Proceedings, dated 5 May 1978, with accompanying medical documents; his PEB Proceedings, dated 30 August 1974; his Letter Orders Number D9-431, dated 20 September 1974; a memorandum, Subject: Reason for Separation, from Headquarters, U.S. Army Missile Command, dated 30 September 1974; his Medical Evaluation Board (MEB) Proceedings, dated 12 August 1974 with accompanying medical documents, Travel Vouchers, and Leave and Earnings Statements; his Special Orders Number 271, dated 3 October 1970, reassigning him to a unit in Germany; his Honorable Discharge Certificate, dated 24 March 1969; his DD Form 214 for the period ending 24 March 1969; his Certificate of Appreciation, dated 25 March 1968; his Special Orders Number 45, dated 25 March 1965, discharging him from active duty on 24 March 1965; his Honorable Discharge Certificate, dated 24 March 1965; his DD Form 214 for the period ending 24 March 1965; his Honorable Discharge Certificate, dated 24 March 1965; his Report of Medical Examination, dated 30 October 1963; his Report of Medical History, dated 30 October 1963; his Honorable Discharge Certificate, dated 1 August 1957; and his Certificate of Service, dated 31 October 1963.

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.  After having had prior active and inactive service, the applicant enlisted in the Regular Army on 10 February 1964.  He continued to serve on active duty through reenlistments.  He was promoted to staff sergeant on 15 October 1968.  

3.  The applicant’s Clinical Cover Sheet, dated 20 June 1974, shows one of his diagnoses as Legg-Perthes disease with residual bony deformity, both femoral heads, resultant bilateral disabling hip pain, and severe bilateral hip limitation of motion.  

4.  A MEB evaluated the applicant in August 1974.  The MEB found that the applicant was medically unfit for further military service in accordance with current medical fitness standards.  He was diagnosed as having bilateral osteoarthritis of the hips with limitation of hip extension.  The MEB proceedings indicated that the applicant’s medical condition was incurred in the line of duty in 1965 and an “X” was marked under “Yes” to indicate his medical condition was caused incident to service.  His MEB proceedings also indicated that his medical condition was aggravated by active duty; received optimum hospital improvement for disposition purposes attained and maximum hospital benefit received.  He was referred to a PEB.  The applicant acknowledged that he had been informed of the approved findings and recommendations of the MEB and he agreed with the board’s action.  

5.  An informal PEB convened on 30 August 1974.  The PEB proceedings described the applicant’s condition as osteoarthritis, both hips and both knees, causing painful motion.  The PEB found that the applicant was physically unfit and recommended a combined rating of 30 percent and that he be placed on the TDRL with reexamination during February 1976.  The PEB proceedings indicated that if the applicant was retired because of disability, his retirement would be based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law.  

6.  The applicant was released from active duty on 29 September 1974 based on physical disability and he was placed on the TDRL on the following date.  He completed 5 years, 6 months, and 5 days of active military service during the period covered by the report and 10 years, 8 months, and 24 days total active military service.

7.  The DD Form 214 for the period ending 29 September 1974 provided by the applicant shows the following entries:

* Item 9a - “Retirement”;
* Item 9c - a dashed line;
* Item 9d - “74 09 29”; and
* Item 9f - “None”

8.  The record copy of the applicant’s DD Form 214 for the period ending 29 September 1974 shows the entry “Para 5-8e(2) AR 635-40  SPD SFK” in item 9c.  


9.  The applicant was reevaluated by a TDRL informal PEB on 26 August 1976.  The PEB proceedings described his medical conditions as total hip replacement for osteoarthritis (Veterans Administration Schedule for Rating Disabilities (VASRD) code 5174); osteoarthritis with marked disability under (VASRD code 5255); and hemorrhoid, large, right side, developing while on TDRL (7336).  The PEB found that the applicant was physically unfit and recommended that he be retained on the TDRL with reevaluation in February 1978.

10.  An informal PEB convened on 5 May 1978 and described his medical conditions as total hip replacement and osteoarthritis.  The PEB found that the applicant was unfit and recommended a combined rating of 80 percent and that he be permanently retired from the service.  

11.  Orders D112-13, dated 8 June 1978, removed the applicant from the TDRL and discharged him from the service on 30 June 1978 because of permanent physical disability.  

12.  The applicant was issued a Certificate of Retirement which shows he was retired from the U.S. Army on 1 July 1978.  

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.  It states in pertinent part that a member whose retirement from the service is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war is entitled to certain special considerations if he subsequently goes to work for the Federal Government.  The disability must have resulted from injury or disease received in line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.


14.  Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service.  The version in effect at the time stated that the statutory and/or regulatory authority for separation plus the Separation Program Designator (SPD) would be entered in item 9c.  

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  In August 1974, an informal PEB found the applicant unfit for military service due to osteoarthritis, both hips and both knees.  Because it was determined that the applicant's physical disability was temporary, he was released from active duty on 29 September 1974 and placed on the TDRL with a 30 percent disability rating.

2.  The applicant was removed from the TDRL on 30 June 1978 and was permanently retired on 1 July 1978.

3.  The applicant’s actual retirement date is 29 September 1974, the date he was separated from active duty and placed on the TDRL.  All that occurred on 1 July 1978 was that his retirement was made permanent.  

4.  Since the applicant was separated from active duty and placed on the TDRL on 29 September 1974, item 9a properly indicates only the phrase “Retirement” and item 9d properly indicates the entry “74 09 29.”  A copy of the DD Form 214 from the applicant’s service records will be provided to him.  

5.  The PEB proceedings indicated that the applicant’s disability was received in line of duty as a result of armed conflict.  However, this might have been an error since it appears the applicant’s condition was the result of a disease.

6.  Since the applicant was permanently retired on 1 July 1978, he was issued a Certificate of Retirement which properly reflects the correct data.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.




      _______ _xxxx______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080009731



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009731



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1