IN THE CASE OF:
BOARD DATE: 2 December 2010
DOCKET NUMBER: AR20100012218
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 his military records to show he was retired due to physical disability.
2. The applicant states he was under the impression that he would be medically retired. However, because his DD Form 214 (Certificate of Release or Discharge from Active Duty) states he was separated due to physical disability with severance pay, he is denied a retirement. He feels that his 17 years of military service were wasted.
3. The applicant provides copies of DD Forms 214 issued on 28 May 1974 and 17 March 1988.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 28 August 1972, the applicant enlisted in the Regular Army. He completed the training requirements and he was awarded military occupational specialty 68J (Aircraft Fire Control Repairer).
3. On or about 6 January 1988, a medical evaluation board (MEBD) convened to assess the applicant's medical condition. The applicant indicated that he did not desire to continue on active duty and he agreed with the MEBD findings and recommendations. The MEBD referred the applicant to a Physical Evaluation Board (PEB) for a determination of fitness for duty based on the following diagnoses:
a. Severe, progressive sensorineural hearing loss, bilateral;
b. internal hemorrhoids;
c. abdominal wall lipomas; and
d. left wrist pain, functional.
4. On 5 February 1988, a PEB convened to consider the applicant's medical conditions. The PEB found the applicant unfit due to severe, progressive sensorineural hearing loss, bilateral, rated 20 percent disabling.
5. On 18 February 1988, the applicant non-concurred with the PEB's determination but waived a formal hearing of his case. He indicated that his written appeal was not attached.
6. A message from the Total Army Personnel Command [now known as the Human Resources Command] dated 7 March 1988 directed the applicant's discharge not later than 1 April 1988 due to a disability rating of 20 percent.
7. On 17 March 1988, the applicant was discharged due to physical disability, with severance pay. He had attained the rank of staff sergeant, pay grade E-6, and he had completed a total of 15 years, 6 months, and 20 days of creditable active service.
8. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than
30-percent disabling. It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.
.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he should have been retired due to physical disability.
2. The available evidence clearly shows the applicant was medically disabled and evaluated by a PEB. He received a 20-percent disability rating and severance pay. The applicant non-concurred with this decision and waived a formal hearing; however, there is no evidence showing that he ever submitted an appeal.
3. The applicant has not provided any documentary evidence or convincing argument that shows he was led to believe he would be retired due to his medical conditions or that he should have received a higher disability rating.
4. There is no apparent error or injustice in this case.
5. In view of the above, the applicant's request should be denied.
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) AR20100012218
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ABCMR Record of Proceedings (cont) AR20100012218
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