IN THE CASE OF:	

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090009128 


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 that his records be corrected to show he was placed on the Retired List in the rank of specialist four/SP4 on 12 April 1974.

2.  The applicant states, in effect, that he was placed on the Temporary Disability Retired List (TDRL) in 1969 and then permanently retired with a 70-percent disability rating on 12 April 1974.  He states that he would like to know why his records do not show that he was permanently retired or that his retired rank is SP4.

3.  The applicant provides the following documents in support of his application:

	a.  a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 19 March 1969;

	b.  Letter Orders Number D4-181, dated 12 April 1974, issued by the U.S. Army Personnel Command;

	c.  a DA Form 3713 (Data for Retired Pay), dated 12 April 1974;

	d.  Unit Orders Number 25, dated 19 August 1968, issued by the 57th Infantry Platoon (Scout Dog), Americal Division;

	e.  a copy of his Department of the Army Certificate of Retirement, dated 20 March 1969;

	f.  a letter from the U.S. Army Human Resources Command (HRC) Combat-Related Special Compensation Division, dated 24 September 2008;

	g.  a letter from the Army Review Boards Agency (ARBA) Case Management Division, dated 6 March 2009;

	h.  a letter from the applicant to the Defense Finance and Accounting Service (DFAS) Military Retirement Pay Office, dated 10 March 2009; and

	i.  a letter from DFAS to the applicant, dated 17 April 2009.

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 enlisted in the Regular Army on 19 May 1967.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 11F (Infantry Operations and Intelligence Specialist).  Records show he served in the Republic of Vietnam from 11 February 1968 to 6 September 1968.

3.  While on a combat infantry patrol in the Republic of Vietnam, the applicant was wounded when he made contact with an enemy booby trap on 20 August 1968.  He was treated at a field surgical hospital and then medically evacuated to the Valley Forge General Hospital in Phoenixville, PA.

4.  On 29 January 1969, a medical evaluation board (MEBD) considered the applicant's medical fitness for duty.  The MEBD found the applicant medically unfit due to his left leg amputation above the knee by fragments from an enemy booby trap with secondary fragment wounds to his right leg, including residual foreign bodies, and an injury to the digital nerve on the fifth finger of his right hand.  The MEBD recommended the applicant be referred to a physical evaluation board (PEB) and transferred to the Veterans Administration.  The applicant indicated he did not want to continue on active duty.

5.  On 6 February 1969, the MEBD approval authority approved the findings of the MEBD and the applicant concurred.

6.  On 17 February 1969, a PEB was convened and found that the applicant was physically unfit due to the amputation of his left leg above the knee and an anterior thigh group muscle injury to his right leg.  The PEB recommended that he be placed on the TDRL, rated 70-percent disabled.  The applicant concurred with the PEB's findings and recommendation.

7.  Accordingly, on 19 March 1969 the applicant was honorably released from active duty due to physical unfitness and placed on the TDRL the following day.

8.  On 30 September 1970, the applicant's disability retirement pay was terminated under the provisions of Title 10, U.S. Code, section 1210, for failing to appear for a required periodic physical examination as duly ordered and having failed to show just cause for such failure to report.  In the termination letter, the applicant was told that if he did not comply with the requirement for a periodic physical examination prior to 19 March 1974 his name would be removed from the TDRL without the benefits of a medical evaluation.

9.  On 19 March 1974, the applicant's 5-year tenure on the TDRL expired.  A PEB was convened at the Walter Reed Army Medical Center and found the applicant physically unfit due to his left leg amputation (lower third) and an anterior thigh group muscle injury to his right leg.  The PEB recommended a rating of 70-percent disabled and that he be permanently retired.  The applicant concurred with this PEB's recommendation and waived a formal hearing.

10.  Accordingly, on 19 March 1974 the applicant was removed from the TDRL and permanently retired on 20 March 1974 in the grade of SP4/E-4.  Orders were issued announcing his removal from the TDRL and subsequent placement on the permanent Retired List.

11.  The applicant's official military personnel file contained a copy of a DA Form 3173 that shows he was removed from the TDRL by U.S. Army Personnel Command Letter Orders Number D4-181 and placed on the Retired List on 20 March 1974 with a 70-percent disability.

12.  The applicant submitted a claim for Combat-Related Special Compensation.  Accordingly, on 24 September 2008, HRC responded to the applicant's claim stating that records indicated he was not in a retired status for there was no record of him being processed for retirement or that he had applied for retired pay.

13.  In the processing of this case, a staff member from the ABCMR contacted the DFAS Retired and Annuity Pay Operations which confirmed the applicant had no retired pay record and that he was collecting financial compensation from the Department of Veterans Affairs.

14.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

15.  Title 10, U.S. Code, section 1201, provides for the placement of Soldiers on the Permanent Disability Retired List who incur a physical disability in the line of duty while serving on active duty for over 30 days.  However, the disability must have been the proximate result of performing that active duty.  Section 1202 of this code provides for the placement of Soldiers on the TDRL if they meet the provisions of section 1201, but the disability has not yet been determined to be of a permanent nature.  However, accepted medical principals must indicate that the disability will become permanent in nature.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant was evaluated by an MEBD and then a PEB which placed him on the TDRL.  He failed to comply with the requirement for periodic physical evaluations while on the TDRL and his retired pay was terminated in 1970.

2.  As required, the applicant's medical file was reevaluated by a second PEB which permanently retired him due to physical disability based on his leg amputation above the knee and fragmentary wounds to the muscles of his right leg.

3.  For reasons unknown to these proceedings, the applicant's retirement application to DFAS was not processed so he was not properly placed on the Retired List within DFAS individual finance records.  Therefore, it would be appropriate to show that the applicant was permanently retired with 70-percent disability on 20 March 1974, the day after he was removed from the TDRL.  The applicant's records show he was an SP4/E-4 at the time he was placed on the Retired List.

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was permanently retired with 70-percent disability in the grade of SP4/E-4 on 20 March 1974.



      ____________X____________
                 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)                                         AR20090009128



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ABCMR Record of Proceedings (cont)                                         AR20090009128



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