BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100008838 


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, in effect, that she be placed on the Retired List in pay grade E-8 [master sergeant (MSG)] with 30 years active service.

2.  The applicant states "My release from active duty was not properly granted in a proper manner.  After review I would like these changes to happen.  Review the characterization of change of service to honorable conditions under full medical discharge under conditions by releasing me from Temporary Duty Retired List and properly placing me on the Permanent Retired List of 30 years of active duty service."

3.  The applicant provides copies of:

* her DD Form 2 (Retired) (United States Uniformed Services Identification Card), issued on 18 May 2004
* her Certificate of Birth
* her Marriage Certificate, dated 29 May 1981
* her DD Form 93 (Record of Emergency Data), dated 21 June 1996
* her SGLV - 8286 (Servicemen's Group Life Insurance Election and Certificate), dated 21 June 1996
* her letter to the Master Sergeant Selection Board, dated 15 December 1995
* a letter from her commander to the Physical Evaluation Board (PEB) Liaison Officer, dated 22 August 1996
* 
her DD Form 3947 (Medical Evaluation Board (MEBD) Proceedings, dated 23 August 1996
* her informal PEB Proceedings, dated 22 September 1996
* Orders 338-0012 placing her on the Temporary Disability Retired List (TDRL), dated 3 December 1996
* her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 8 January 1997
* her informal PEB Proceedings, dated 22 July 1998
* Orders D163-8, removing her from the TDRL and placing her on the Retired List, dated 20 August 1998
* her Certificate of Retirement, dated 21 August 1998
* her Department of Veterans Affairs (VA) Rating Decisions (with award letters) of 18 November 2008 and 30 April 2009
* her decision from the Board of Veterans' Appeals (BVA) (with award letter), dated 3 April 2009
* additional correspondence between her and the VA
* six letters from the Combat-Related Special Compensation (CRSC) Division, Human Resources Command (HRC), Alexandria, VA, dated from 16 December 2003 to 7 December 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's military personnel records show she enlisted in the Regular Army on 23 November 1979.  She was awarded military occupational specialty (MOS) 79S (Career Counselor).  She served continuously until her placement on the TDRL.

3.  In a letter, dated 22 August 1996, the applicant's commander stated she was not pending any adverse action or flagged.  The commander stated her 

performance was excellent; however, her physical impairment prevented her unit from assigning her to a Divisional unit.  The commander recommended the applicant's processing and separation through the U.S. Army Physical Disability Evaluation System (PDES).

4.  On 23 August 1996, an MEBD found the applicant to be medically unacceptable and referred her to a PEB for:

* undifferentiated connective tissue disease/overlap syndrome
* symptoms consistent with progressive systemic sclerosis
* systemic lupus erythematosus
* recurrent inflammatory polyarthritis, most consistent with rheumatoid arthritis of bilateral hands and wrists
* chronic glomerulonephritis
* Raynaud's phenomenon with sclerodatyly (scarring)

5.  On 4 September 1996, the applicant agreed with the findings and recommendation of the MEBD.  She indicated that she did desire to continue on active duty.

6.  On 22 September 1996, an informal PEB found the applicant unfit for duty for undifferentiated connective tissue disease/overlap features of scleroderma, lupus, rheumatoid arthritis, chronic glomerulonephritis, and Raynaud's phenomenon with sclerodactyly.

7.  The PEB recommended a combined disability rating of 60 percent and that the applicant be placed on the TDRL with a reexamination during 1 March 1998.  The applicant concurred with the findings and recommendation of the PEB and waived her right to a formal hearing of her case.

8.  On 1 October 1996, the PEB was forwarded to HRC, Alexandria, for consideration of the Soldier's application to remain on active duty.

9.  On 8 January 1997, the applicant was retired because of physical disability and placed on the TDRL, effective 9 January 1997, with a disability rating of      60 percent.  She had completed 17 years, 1 month, and 16 days of total active service.  The highest rank/grade she held was sergeant first class (SFC)/E-7.  There is no evidence the applicant was on a promotion list for MSG/E-8.

10.  As of 17 July 1998, the applicant had not responded to a letter requesting her concurrence or non-concurrence with her Report of Examination - TDRL.  Based on her failure to respond it was assumed she waived her right to appeal her TDRL examination.
11.  On 22 July 1998, an informal PEB found the applicant unfit for duty for undifferentiated connective tissue disease, with features of scleroderma, lupus, rheumatoid arthritis, chronic glomerulonephritis, and Raynaud's phenomenon with sclerodactyly.  The PEB stated the applicant's condition had not improved since her placement on the TDRL and continued to preclude her return to duty.

12.  The PEB recommended a combined disability rating of 60 percent and that the applicant's disposition be permanent disability retirement.

13.  On 20 August 1998, the applicant was removed from the TDRL and placed on the Retired List by reason of permanent disability in the rank of sergeant first class.  She was assigned a disability rating percentage of 60 percent.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

15.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be placed on the Retired List in pay grade E-8 with 30 years active service.  She contends her release from active duty was not properly granted in a proper manner.

2.  The applicant concurred with the findings and recommendation of both the MEBD and the PEB prior to her being placed on the TDRL.  At the time of her placement on the TDRL she had completed 17 years, 1 month, and 16 days of active service.  She did not serve on active duty between the time of her placement on the TDRL and the time of her removal from the TDRL.  Therefore, she could not have been placed on the Retired List with 30 years of active service.

3.  There is no evidence the applicant was on a promotion list for master sergeant or that she ever held the rank of master sergeant.  Therefore, she could not have been placed on the TDRL or the Retired List in the grade of master sergeant.

4.  Evidence shows the applicant was properly and equitably processed through the PDES with no indication of procedural or other errors that would tend to jeopardize her rights.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100008838



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)