IN THE CASE OF:	

		BOARD DATE:	  01 April 2010

		DOCKET NUMBER:  AR20100010189 


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, a 20-year retirement.

2.  The applicant states, in effect, he is a 100 percent service-connected mentally disabled retiree.  He describes his military career beginning in 1972 when he enlisted and served as a HAWK radar mechanic.  He points out he received a Reserve Officers’ Training Corps scholarship in 1974 and was commissioned an officer in the Regular Army in 1976, that he served on active duty from 1976 to 1980, and that he got out of the Army in July 1980.  He goes on to state that he was ordered to active duty in 1981 and that in May/June 1994 he became mentally disabled.  He claims he was not notified of his second promotion consideration for lieutenant colonel nor was he sent to personnel to update his file.  He states that medical files indicate if he was kept on active duty he could only do office work that would have to be closely supervised, that he could not be sent to isolated areas, that he would not be able to work in his previous job, that he would have to be on medication for the foreseeable future, and that his IQ went from 148 to 100.       

3.  The applicant states that he appealed the Physical Evaluation Board (PEB) decision and requested continuation of active duty (COAD).  He indicates that he was called by a major from the Army Signal Corps in February/March 1995 stating that he had been twice passed over for lieutenant colonel and the Army Chief of Staff decided all second time non-selects would be discharged and would not be allowed to retire.  He told the major his situation and that the PEB would be making a decision soon and she stated the Signal Corps would abide by the PEB decision.  
4.  The applicant states that in February 1995 he was informed by a PEB Liaison Officer (PEBLO) that he was offered a 30 percent permanent disability rating and his request for COAD was still being considered.  The PEBLO told him he would get his retirement which would be 49.9 percent of his base pay and 30 percent of it would be nontaxable, if he accepted.  He agreed with the assurances that his request for COAD was still being considered.  To his surprise, he was told by his commander that he was going to be retired early and with no mention of his request for COAD.  He contends the Army could have let him continue doing the job he had been doing for months and allowed him to retire in August 1995.  He goes on to state that in his mental condition he could not see any way to fight that decision and that he did not have anyone advising him other than the PEBLO.  

5.  The applicant points out that he was asked to make decisions affecting not only his career but also his family without being mentally capable due to being heavily medicated which impaired his mental capacity.  He claims that he was a good officer and he wanted to complete 20 years active military service.         

6.  The applicant provides four Officer Evaluation Reports; service medical records; emails; Department of Veterans Affairs (DVA) documentation; and retirement orders 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 enlisted in the Regular Army on 28 November 1972, served as a HAWK control wave radar mechanic, and was honorably separated on 29 July 1974.  He was commissioned a second lieutenant on 19 May 1976 and ordered to active duty on 12 June 1976.  He served as a communications electronics officer and was released from active duty on 11 June 1980 and transferred to the U.S. Army Reserve Control Group (Reinforcement).  On 8 April 1981, the applicant was ordered to active duty.  
3.  On 26 September 1994, a Medical Evaluation Board (MEB) diagnosed the applicant with psychotic disorder.  In item 15 on the DA Form 3947 (MEB Proceedings), the applicant indicated that he did desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  In item 16 on the DA Form 3947, medical officials determined that COAD under provisions of Army Regulation 635-40 was medically contraindicated.  The MEB recommended referral to a PEB.     

4.  The applicant provided an undated request for continuance on active duty.

5.  On 7 November 1994, an informal PEB diagnosed the applicant with psychotic disorder not otherwise specified.  The PEB noted the applicant requested COAD under the provisions of chapter 6, Army Regulation 635-40.   The PEB found the applicant physically unfit and recommended a rating of 30 percent and that he be placed on the TDRL.  On 21 November 1994, the applicant did not concur with the PEB's findings and recommendation but waived a formal hearing.  In his appeal, dated 21 November 1994, the applicant stated, in pertinent part, that he was eligible for a 20 year retirement in 9 months, that he felt he could continue to be a valuable asset to the Army, and he requested to be continued on active duty.  

6.  On 19 January 1995, the U.S. Army Physical Disability Agency (USAPDA) modified the PEB findings, rating, and disposition.  The revised DA Form 18 (Revised PEB Proceedings) shows the PEB diagnosed the applicant with psychotic disorder not otherwise specified.  The USAPDA noted that the applicant had requested COAD under the provisions of chapter 6, Army Regulation 635-40.  The PEB found the applicant physically unfit and recommended a rating of 30 percent and that he be retired for permanent physical disability.  On 3 February 1995, the applicant concurred with the agency modification.  

7.  On an unknown date, the USAPDA approved the PEB’s findings and recommendation.

8.  The applicant retired in the rank of major on 6 May 1995 by reason of permanent physical disability with a 30 percent disability rating.  

9.  The applicant's DD Form 214 for the period ending 6 May 1995 shows he completed a total of 19 years and 9 months of creditable active service.

10.  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.  Paragraph 6-7 of Army Regulation 635-40 states that to be considered for COAD, a Soldier must be (1) determined unfit by the Physical Disability Evaluation System for a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence; (2) basically stable or have a disability that is of slow progression according to accepted medical principles.  It must not be deleterious to the Soldier’s health or prejudicial to the best interest of the Soldier or the Army.  For example, the disability must not pose a risk to the health or safety of other Soldiers; (3) physically capable of performing useful duty in military occupational specialty (MOS) for which currently qualified; (4) eligible under one or more of the criteria listed: (a) for COAD, have 15 but less than 20 years of active federal service.  (b) qualified in a critical skill or shortage MOS.  Such qualification must be confirmed in writing by the applicable personnel office and attached to the request; or (c) disability resulted from combat or terrorism.  

11.  Army Regulation 635-40 also states a Soldier may not be retained or separated solely to increase retirement or separation benefits.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he requested COAD was noted.  However, it appears the applicant did not meet the criteria to be approved for COAD.  Considering the nature of his medical condition, it appears this was a proper decision to make.

2.  The applicant's remaining contentions were carefully considered.  However, he concurred with the revised PEB findings and recommendation on 3 February 1995.

3.  Evidence of record shows the applicant completed 19 years and 9 months of creditable active service when he retired.  Regrettably, there is no basis for granting the applicant’s request for a length of service retirement.

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)                                         AR20100010189



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ABCMR Record of Proceedings (cont)                                         AR20100010189



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