IN THE CASE OF:	  

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090010695 


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 a waiver to complete 20 years of active federal service. 

2.  The applicant states, in effect, that he would have served for 20 years in the active Army if he had not been injured and then medically retired.  He states he served 19 years, 4 months, and 7 days. 

3.  The applicant provides in support of his application a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 6 January 1997. 

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 30 August 1977.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 13B (Cannon Crewmember).  

3.  Records show that the applicant was injured in four separate training incidents with the first being in 1978.  All four incidents were recorded as head trauma from blunt force objects falling or hitting his head often with loss of consciousness.  The last incident was in July 1996, when he had a severe head trauma resulting in a loss of consciousness, amnesia. and left sided weakness.  He was hospitalized and diagnosed with post-traumatic migraines with post-concussive syndrome.  After a period of recuperation, the applicant received a permanent profile which decreased his activities. 

4.  On 6 November 1996, a Medical Evaluation Board (MEBD) referred the applicant to a Physical Evaluation Board (PEB) for severe progressive post-traumatic concussive syndrome with severe headaches.  The applicant authenticated a DA Form 3947 (Medical Evaluation Board Procedures) and indicated in item 15 that he did not desire to continue on active duty under the provisions of Army Regulation 635-40 ((Physical Evaluation for Retention, Retirement, or Separation).  

5.  On 26 November 1996, the applicant agreed with the MEBD's findings and recommendations. 

6.  On 5 December 1996, an informal PEB found the applicant unfit for duty under the following Veterans Affairs Schedule for Rating Disabilities (VASRD) codes and conditions:

	a.  8199 8100 – post-concussive syndrome manifested by migrainous headaches, rated 30-percent disabling; and

	b.  8510 8520 – left sided weakness secondary to post concussive syndrome, rated 20-percent disabling. 

7.  The PEB found the applicant physically unfit and recommended a combined rating of 40 percent and that the applicant be retired with a permanent disability.  Further, the PEB stated that the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

8.  On 9 December 1996, the applicant concurred with the PEB informal findings and waived his right to a formal hearing.  The applicant's records contain the PEB Liaison Officer's counseling checklist statement which shows that he was informed of his legal rights and the benefits and programs available to him as a retired member of the Armed Forces. 

9.  On 6 January 1997, the applicant was retired with permanent physical disability.  Orders 006-0008 issued by 5th Personnel Service Battalion, Fort Polk, LA shows his percentage of disability was 40 percent.  He was issued a DD Form 214 which shows his rank was staff sergeant/pay grade E-6 and that he had served 19 years, 4 months, and 7 days of active service. 

10.  Title 10, U.S. 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.   

11.  Army Regulation 635-40 provides, in pertinent part, for the Continuance of Disabled Personnel on Active Duty (COAD).  The objective is to conserve manpower by effective use of needed skills or experience.  Personnel considered for COAD must meet the following criteria:

	a.  found unfit by PEB because of a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence;

	b.  capable of maintaining one's self in a normal military environment without adversely effecting one's health and the health of others; and without undue loss of time from duty for medical treatment;

	c.  physically capable of performing useful duty in an MOS for which he is currently qualified or potentially trainable; and

	d.  eligible because one has 15 years but less than 20 years of total service, or is qualified in a critical skill or shortage MOS confirmed by Headquarters, Department of the Army; or disability is the result of combat. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should receive a waiver and be allowed to reach 20 years of active service.  

2.  In 1996, a PEB determined that the applicant was medically unfit to continue on active duty and recommended permanent disability retirement with a combined disability rating of 40 percent.  The applicant concurred and waived a formal PEB hearing.  Based on his decision to not remain on active duty as indicated during the MEBD process, the applicant was medically retired with 19 years, 4 months, and 6 days of active service.

3.  Since the applicant was rated at 40 percent disabled and he personally elected to not remain on active duty, he was promptly released from active duty and retired.  There was a provision at the time to remain on active duty after being determined medically unfit.  However, the COAD program criteria disqualified the applicant from extending based on his not being able to perform his duties in his MOS based on the PEB findings.  Accordingly, the applicant was discharged as soon as practical after the PEB was approved.  

4.  Therefore, there is no basis to grant the applicant's request to waive his retirement date and show he was retained on active duty up to or beyond          20 years of active service. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  __X_____  ___X____  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.




      _______ _   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)                                         AR20090010695





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ABCMR Record of Proceedings (cont)                                         AR20090010695



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