IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100014604 


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, correction of his records to show he was permanently retired instead of discharged with severance pay.

2.  The applicant states he has applied for Combat-Related Special Compensation (CRSC), but he did not meet the preliminary requirements of this program because his DD Form 214 does not show he was retired.  He contacted the Defense Finance and Accounting Service concerning this issue, but he was told there is no retirement order on file for him.  He also spoke with the U.S. Army Human Resources Command (HRC) regarding this issue.  He needs retirement orders to qualify for this program.

3.  The applicant provides the following documents:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* letter from HRC

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 records show he enlisted in the Regular Army for a period of 3 years on 28 April 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Cook).  His records also show he served in Vietnam from on or about 21 April 1969 to on or about 3 December 1969.

3.  In November 1969, he had grown suspicious of his fellow Soldiers in Vietnam and felt someone was going to kill him.  He began to panic and experience paranoid ideation.  He also smoked large quantities of marijuana and used excessive quantities of alcohol.  On 20 November 1969, he was evacuated from Vietnam to Japan and ultimately to Fort Campbell, KY.

4.  He underwent a medical as well as a psychiatric evaluation and he was diagnosed as having a paranoid-type schizophrenic reaction manifested by autism, ideas of reference, paranoid ideation, ambivalence, and the feeling of being controlled by other people.  He was determined to be medically unfit for further military service and he was recommended for referral to a medical evaluation board (MEB) to determine the extent of his disability.

5.  On 26 January 1970, an MEB convened at Fort Campbell and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the non-medically acceptable condition of schizophrenic reaction with considerable social and industrial adaptability.  The MEB recommended that he be referred to a physical evaluation board (PEB).  The applicant agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

6.  On 25 February 1970, an informal PEB convened at Fort Gordon, GA, and found his condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to acute schizophrenic reaction.  The PEB noted his physical impairment brought about by his schizophrenic reaction was of such a nature that evaluation of a permanent degree of severity was not possible.  He was awarded a 50-percent disability rating.  Accordingly, the PEB recommended placing him on the Temporary Disability Retired List (TDRL) with reexamination during August 1971. 
He concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

7.  On 24 March 1970, Office of the Adjutant General, Headquarters, Department of the Army, directed the applicant's temporary disability retirement in the grade of private/E-2 effective 30 March 1970, and cited paragraph 273 of Department of the Army Special Orders Number 57, dated 24 March 1970, as the authority for the retirement.

8.  On 30 March 1970, the applicant was honorably retired in the rank/grade of private/E-1.  The DD Form 214 he was issued shows he was retired in accordance with Title 10, U.S. Code, section 1202, by reason of temporary physical disability.  This form further shows he completed 2 years, 11 months, and 3 days of creditable active service.

9.  On 4 August 1971, he underwent a TDRL medical reexamination at the Naval Hospital, Great Lakes, IL.  The examination revealed that his chronic and paranoid-type schizophrenia appeared to be in partial remission.  He was subsequently notified that he remained unfit for duty and that his case would be presented before a PEB for final disposition.

10.  On 17 November 1971, a TDRL PEB convened at Fitzsimmons General Hospital, Denver, CO, and determined the applicant's paranoid-type schizophrenic reaction continued to preclude him from reasonable fulfillment of the purpose of his employment in the Army.  The PEB determined he remained unfit, awarded him a 10-percent disability rating, and recommended his separation from the Army with entitlement to severance pay.  On 2 December 1971, the applicant concurred with the TDRL PEB's findings and recommendations and waived his right to a formal hearing of his case.

11.  On 10 January 1972, the Office of the Adjutant General, Headquarters, Department of the Army, published Letter Orders Number D-1-195, removing him from the TDRL effective 31 January 1972 with entitlement to severance pay under Title 10, U.S. Code, section 1202.

12.  He submitted a letter, dated 3 February 2009, from HRC advising him that he did not meet the preliminary eligibility requirements for CRSC.  In order to submit a claim for CRSC, Department of Defense guidelines require that he meet all of the following requirements:

* receiving military retired pay
* have 10 percent or greater Department of Veterans Affairs (VA)-rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for MEB's, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was retired.

2.  The evidence of record shows the applicant presented a medical condition and subsequently underwent an MEB which recommended he be given a PEB.  He agreed with this recommendation.  The PEB found his condition prevented him from performing his duties and determined he was physically unfit for performance of military duty by reason of physical disability, but his condition had not sufficiently stabilized at the time to permit an accurate assessment of a permanent degree of disability.  Therefore, the PEB recommended placing him on the TDRL by reason of temporary disability.  The applicant concurred.  Accordingly, Headquarters, Department of the Army, issued Special Orders Number 57 on 24 March 1970 directing his temporary disability retirement.

3.  Upon medical reevaluation, a TDRL PEB determined his medical condition continued to preclude him from reasonable fulfillment of the purpose of his employment in the Army and that he remained unfit and recommended separation from the Army with entitlement to severance pay.  The applicant concurred.  Accordingly, he was issued appropriate orders directing his removal from the TDRL and separation with entitlement to severance pay.  Since he was rated at less than 30 percent, he could not have been permanently retired.

4.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  He was issued the appropriate orders upon his temporary retirement and the appropriate orders upon his separation with severance pay.  There is no error or injustice in this case.

5.  CRSC provides for an individual to receive both military retirement pay/benefits and VA disability compensation.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Since the applicant is not a retired member of the Armed Forces, he appears to be ineligible for CRSC.

6.  In view of the foregoing evidence, he is not entitled to the 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)                                         AR20100014604



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ABCMR Record of Proceedings (cont)                                         AR20100014604



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