IN THE CASE OF:
BOARD DATE: 1 February 2011
DOCKET NUMBER: AR20100016957
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 that his records be changed to show he was permanently retired for medical reasons.
2. He states his records show he was temporarily retired.
3. He provides:
* His DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 21 July 1987
* Department of Veterans Affairs (VA) Form 119 (Report of Contact), dated 1 May 2009
* A memorandum from the Defense Finance and Accounting Service (DFAS), dated 13 October 2009
* A statement from his son
* A self-authored statement
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 31 January 1978, the applicant enlisted in the Regular Army.
3. He underwent a physical evaluation board (PEB) on 26 May 1987. The evaluation determined:
* he was unfit for duty due to a schizophreniform disorder
* he had a definite impairment of social and industrial adaptability
* he was rated 30 percent disabled
* his physical condition was unfitting
4. The PEB recommended:
* a temporary medical retirement and a transfer to the Temporary Disability Retired List (TDRL)
* reexamination during November 1988
5. On 4 June 1987, he concurred with the aforementioned findings and waived a formal hearing.
6. Orders Number D126-5, issued by the Department of the Army, U.S. Army Military Personnel Command (MILPERCEN), dated 29 June 1987, show he was retired effective 21 July 1987, and placed on the TDRL effective 22 July 1987.
7. The PEB reevaluated all the available medical records on 16 March 1989 and found he was unfit for duty due to paranoidal schizophrenia, subchronic, stable, with slight impairment for social and industrial adaptability.
8. Based on this review:
* he did not require medication, hospitalization or psychotherapy,
* he demonstrated no overt psychiatric symptoms to the evaluating psychiatrist
* his condition was upgraded to 10 percent disabling
* his physical condition was unfitting
* the PEB recommended that he be separated from the service with severance pay, if otherwise qualified
9. On the same date, he concurred with the aforementioned findings and waived a formal hearing.
10. Orders Number D76-8, issued by MILPERCEN, dated 20 April 1989, show the applicant was removed from the TDRL and discharged from the military on
20 April 1989 due to a permanent physical disability that was 10 percent disabling with severance pay.
11. He submitted a memorandum from DFAS, Indianapolis, dated 13 October 2009, which states:
* he was placed on the TDRL on 22 July 1987
* he was discharged from the TDRL with severance pay on 1 May 1989 and, therefore, he was not entitled to monthly retired pay
* retirement payments were disbursed from 22 July 1987 through 30 April 1989
* both the above retirement pay and the severance payment, dated 24 May 1989, were all mailed to the address listed on his DD Form 214
* his claim of non-receipt of pay was forwarded to DFAS, Cleveland on
5 October 2009
12. He submitted an undated statement from his son, a self-authored statement, and a VA Form 119 from the VA, all of which basically reiterate the applicant's request.
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 medical evaluation boards, 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 medical evaluation board (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 using the VA Schedule for Rating Disabilities (VASRD). Army Regulation 635-40, Appendix B, modifies those provisions of the rating schedule inapplicable to the military and clarifies rating guidance for specific conditions. 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 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 less than 30 percent.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests that his status be changed to show he was permanently retired due to medical reasons.
2. According to the evidence of record:
* his physical and medical disabilities were thoroughly reviewed
* he was afforded an MEB and two PEBs
* he was placed on the TDRL in 1987
* he was evaluated in accordance with guidelines and procedures established by the Army in Army Regulation 635-40 in compliance with the instructions given in Department of Defense Directives and Instruction
* there is no evidence he was not evaluated appropriately
* the PEB review in 1989 rated his condition as 10 percent disabling and recommended separation
* on 1 May 1989, he was released from the TDRL and separated from the service with severance pay
* he concurred with the findings of the PEB
3. He is therefore not entitled to a correction of his records to show he was permanently retired due to medical reasons.
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) AR20100016957
5
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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