IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100017085 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 September 1984 to show he completed 20 years of service in the Regular Army.

2.  The applicant states, in effect, that had he been permitted to remain on active duty for an additional 1 1/2 years, he would have completed 20 years of active service and he would now be eligible for concurrent retirement and disability payments (CRDP).  He contends that his counsel failed to advise him of the future impacts of a less than 20-year disability retirement.

3.  The applicant provides copies of:

* his DD Form 4 (Enlistment/Reenlistment Document), dated 3 March 1983
* a DA Form 3947 (Medical Evaluation Board Proceedings (MEB), dated
21 May 1984
* a DA Form 3349 (Medical Condition - Physical Profile Record), dated
6 October 1979
* a DA Form 2166-6 (Enlisted Evaluation Report), dated 25 October 1982
* a DA Form 2166-6, dated 10 September 1984
* a DA Form 638 (Recommendation for Award) of the Meritorious Service Medal, dated 1 May 1981
* Permanent Orders 3-2, issued by Headquarters, 312th Evacuation Hospital, Greensboro, NC, dated 30 September 1983


* a letter from the Department of Veterans Affairs (VA), St. Petersburg, FL, dated 4 November 2009
* an extract of page 22 of the 2009 Edition of the VA Federal Benefits for Veterans handbook, with CRDP discussion highlighted
* pages 2 and 3 of his VA Rating Decision
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 8 July 1971
* a HIPAA [Health Insurance Portability and Accountability Act] Authorization for Release of Medical Information, dated 29 June 2010

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.  On 1 March 1966, the applicant enlisted in the Regular Army.  He served through a series of enlistments, with his last enlistment occurring on 3 March 1983 for a 3-year period.  His expiration of term of service (ETS) for that last enlistment was to end on 2 March 1986.

3. On 21 May 1984, the applicant underwent an MEB. 

	a.  He was diagnosed with Meniere's syndrome and he was referred to a Physical Evaluation Board (PEB).

	b.  The recommendation stated that if the applicant was to remain on active duty, it should be within the limitations of his physical profile issued on 7 May 1984 which forbade all bending or running for prolonged periods and limited exposure to noise and no quick turns.

	c.  The applicant did not present views in his own behalf and indicated that he did not desire to remain on active duty.


	d.  The findings and recommendation were approved on 5 June 1984.

4.  On 18 July 1984, the applicant underwent a formal PEB.

	a.  The PEB considered his Meniere's syndrome and degenerative arthritis of his right elbow and lumbar spine.

	b.  The PEB found the applicant unfit and recommended a permanent disability retirement with a 70 percent (%) disability rating percentage.

	c.  The applicant conferred with his counsel and accepted the PEB's decision.

5.  Message, date/time group 071203Z August 1984, issued by the commander of the Military Personnel Center, Alexandria, VA, authorized and directed the permanent retirement of the applicant due to physical disability rated at 70% disabling, effective 4 September 1984.

6.  Orders D142-25, issued by the U.S. Army Military Personnel Center, Alexandria, dated 7 August 1984, retired the applicant and placed him on the Retired List effective 5 September 1984.

7.  A DA Form 3713 (Data for Retired Pay), dated 7 August 1984, shows the applicant was permanently retired due to physical disability and that he had completed 18 years, 6 months, and 4 days of active service.

8.  The VA Rating Decision, provided by the applicant indicates that his service-connected disability was increased to 100% effective 1 May 2006.

9.  Title 10, U.S. Code, section 1414, was amended effective 1 January 2004 to provide:

	a.  concurrent payment of retired pay and VA disability compensation to members with disability ratings greater than 50%; and

	b.  limited eligibility to those retired members with 20 or more years of qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the applicant had not completed 
20 years of qualifying service at the time of his retirement due to physical disability.

2.  There is no evidence of any error or injustice in connection with the applicant's medical processing and subsequent physical disability retirement.  He was advised by counsel and accepted the findings and recommendation of the PEB.

3.  Furthermore, there is no evidence showing that had the applicant non-concurred with the PEB, he would have been permitted to remain on active duty until his ETS.

4.  The applicant's desire to obtain concurrent receipt of both VA compensation and a military retirement is not justification to alter the record of his active duty service.  Regrettably, the passage of a law 19 years after the applicant retired for physical disability prior to completing 20 years of active duty, with his concurrence of the findings of an informal PEB, is insufficient reason to grant   the relief requested.  

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)                                         AR20100017085



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ABCMR Record of Proceedings (cont)                                         AR20100017085



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