IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100013523 


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 that an inappropriate reduction in his disability rating from 50 percent (%) to 20% resulted in his discharge with severance pay rather than a retirement with pension.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), and a Department of Veterans Affairs (VA) Form 21-6782 (Original Disability Compensation).

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 was appointed a Reserve commissioned officer in the rank of first lieutenant and he entered active service on 28 June 1964.  He was promoted to captain on 6 June 1966 and to major on 15 February 1968.

3.  A Medical Evaluation Board (MEB) Proceedings, dated 12 February 1970, indicates a diagnosis of Absence Acquired, Skull, Parietal, Parasagittal, Region, Epte (existed prior to entry).  He was referred to a Physical Evaluation Board (PEB).  He concurred with the MEB's findings and recommendation.

4.  A DA Form 199, dated 17 April 1970, indicates the PEB considered his conditions and found him to be unfit for military service.  The PEB recommended placement on the temporary disability retired list (TDRL) with a combined rating of 30% due to osteomyelitis skull and loss of a part of skull (3x3 1/2 existed prior to service (EPTS); enlarged 1 centimeter in diameter on active duty).

5.  His DD Form 214 shows that he was retired on 27 July 1970 due to a temporary physical disability and placed on the TDRL.

6.  A DA Form 199, dated 19 April 1972, indicates that his condition was re-evaluated and he was found fit for duty.  He did not concur with the PEB's findings and demanded a formal hearing without personal appearance.

7.  A DA Form 199, dated 23 May 1972, indicates that his condition was again
re-evaluated and he was found unfit for military service with a combined rating of 20%.  The PEB recommended his separation from the service with severance pay.  The remarks section of the DA Form 199 contains the following remarks:  "It is the opinion of this Board that the original adjudication (10 April 70) was in error.  It should have been 50% less 30% EPTS factor with net of 20%. According to note (2) VASRD [Veterans Administration Schedule for Rating Disabilities] code 5000, the osteomyelitis is not ratable since there is no recent history of recurrence."

8.  On 7 June 1972, he concurred with the PEB's findings and recommendation and waived a formal hearing of his case.

9.  Letter Orders Number D6-1597, issued by the Department of the Army, Office of The Adjutant General, Washington, D.C., dated 28 June 1972, removed him from the TDRL, effective 29 June 1972, with a physical disability rating of 20% and entitlement to severance pay.

10.  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% disabling. It further provides in section 1201 for the physical disability retirement of a member who has an impairment rated at least 30% disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was given an inappropriate reduction in his disability rating percentage that resulted in his discharge with severance pay rather than a retirement with pension has been carefully considered and found to be without merit.

2.  The available evidence clearly shows he was medically unfit for service and evaluated by a PEB.  He initially received a 30% disability rating percentage and he was placed on the TDRL.  Upon subsequent reexamination, the PEB determined that the original adjudication was in error because it should have been a 50% disability rating less 30% EPTS factor with a net 20% disability rating percentage.  Therefore, he was rated at 20% disabling and appropriately discharged with severance pay.

3.  He concurred with the PEB's findings and recommendation at the time and waived a formal hearing of his case.  He has not provided any evidence to substantiate his claim that the reduction in his disability rating was inappropriate, in error, or unjust.

4.  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)                                         AR20100013523



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ABCMR Record of Proceedings (cont)                                         AR20100013523



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