IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100027139 


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 to be compassionately awarded a letter for 20 years of active Federal service (AFS) and to be paid for 46 days of leave.

2.  The applicant states he would like to collect combat-related special compensation (CRSC).  However, he was denied because he does not have 20 years of AFS and is not eligible.  He states he suffered a massive heart attack while performing unit physical fitness training.  He states he was permanently retired due to disability after completing 18 years and 9 months of AFS.  He currently receives all benefits afforded to military retirees and assumed he was credited with 20 years of AFS.  He now feels he was not properly briefed.  Additionally, he states he was not paid for 46 days of accrued leave when he was medically retired and he has been trying to collect this pay since he retired.

3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 6 April 1988
* Certificate of Retirement, dated 19 July 1999
* Orders D67-20 issued by the U.S. Army Military Personnel Center, dated 6 April 1988,
* DA Form 2-1 (Personnel Qualification Record), dated 9 May 1986
* Department of Veterans Affairs (VA) Rating Decision, dated 12 October 2010
* letter from a Member of Congress, dated 31 October 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 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.  Having prior Regular Army enlisted service, the applicant reenlisted on 1 September 1981 for a 6-year period in the rank of sergeant first class/pay grade E-7.  He had been trained in and was qualified in military occupational specialties 11B (Light Weapons Infantryman), 71B (Clerk Typist), and 71L (Administrative Specialist).

3.  On 2 April 1988, the applicant was medically treated for recurrent episodes of ventricular fibrillation and ventricular tachycardia with decreased cardiac output.  His attending physician recommended his "immediate retirement as patient with very grim prognosis and possible imminent death.  Although further medical interventions may occur, his likelihood of survival are [sic] very low."

4.  On 6 April 1988, a medical evaluation board (MEB) convened and determined he should be referred to a physical evaluation board (PEB) because he was found to have an acute anterior myocardial infarction secondary to atherosclerotic heart disease.  The DA Form 3927 (Medical Evaluation Board Proceedings) shows the applicant stated he did not desire to continue on active duty, that he concurred with the MEB findings and recommendation, and that he waived a formal hearing of his case.

5.  On 6 April 1988, a PEB convened, finding him unfit for duty and recommending a combined rating of 100 percent and transfer to the Temporary Disability Retired List (TDRL) with a reevaluation projected for April 1989.  A representative for the Secretary of the Army approved the PEB's findings and recommendations.

6.  Accordingly, retirement orders were issued and he was retired on 6 April 1988 and transferred to the TDRL.  He was issued a DD Form 214 that shows in 


item 12 (Record of Service) these entries in year(s), month(s), and day(s) format:

* item 12c (Net Active Service This Period) – "06 07 05
* item 12d (Total Prior Active Service) – "12 01 24"
* item 17 (Days Accrued Leave Paid) – "0"

7.  Within his military personnel record is a DA Form 3718 (Data for Retired Pay) that shows the entry ''18 years 8 months 30 days" in item 26 (Disability Retirement – Section 1208) for his total computation of years of service credited for retirement or retired pay.  Item 36 (Remarks) shows this entry "the disability did not result from a combat-related injury."

8.  On 5 May 1989, the applicant was directed by memorandum to report for a periodic physical examination subject to the availability of funds.

9.  On 2 April 1990, he was reexamined and his diagnoses were coronary artery disease status post anteroseptal myocardium infarction and mild to moderate suppression of his left ventricular which was confirmed by an echocardiogram.

10.  On 4 April 1990, the MEB convened and found the applicant fit for duty and recommended his return to active duty.

11.  On 5 April 1990, the applicant received a memorandum stating he was found medically fit for further military service and a reevaluation by a PEB was recommended.  The applicant stated he did not agree with the findings of the MEB because he did not feel he was physically fit to meet the rigors and demands of soldiering.

12.  On 29 May 1990, a PEB convened and found the applicant's condition had stabilized sufficiently for rating purposes and found him physically unfit for duty.  The PEB recommended permanent disability retirement with a combined rating of 30 percent.

13.  On 8 June 1990, the applicant acknowledged receipt of the findings of the PEB by certified mail.

14.  By 9 July 1990, the applicant had not submitted a rebuttal statement and his PEB was forwarded to the appropriate approval authority.

15.  A representative for the Secretary of the Army approved the PEB's findings and recommendations on 12 July 1990 with a combined rating of 30 percent.



16.  On 18 July 1990, he was removed from the TDRL and permanently retired by U.S. Army Total Army Personnel Command Orders D141-18.

17.  References:

	a.  Title 10, U.S. Code, section 3914, provides for the retirement of a Soldier who has completed 20 but less than 30 years of AFS in the U.S. Armed Forces at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.

	b.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

	c.  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 rated at least 30 percent.

	d.  Title 10, U.S. Code, section 1202, provides for the placement of a member on the TDRL when the disability may not be permanent.  Placement on the TDRL requires that the member meet the criteria of Title 10, U.S. Code, section 1201.

	e.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states a Soldier may not be retained or separated solely to increase retirement or separation benefits.  Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

	f.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity deciding cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly and fairly evaluated by the MEB and PEB in 1988 after suffering a cardiac arrest.  Although he contends he was not properly 


briefed, the governing regulation states that a Soldier may not be retained or separated solely to increase retirement or separation benefits.  He would not have been eligible to remain on active duty for another year or so merely to obtain 20 years of AFS.  He was medically retired and placed on the TDRL.  Surviving his ordeal, he was reevaluated in 1989 and found to be fit for duty by a second MEB.  He contested the second MEB finding to the PEB, which found him unfit and permanently retired him with a 30-percent combined rating.

2.  All requirements of law and regulation were met.  The applicant has not submitted any evidence or argument that would show an error or injustice occurred in his case; specifically, that he was not adequately counseled.  In fact, he rebutted the PEB's recommendation and decision to return him to duty in 1989 when his medical condition stabilized.

3.  The applicant's contentions do not demonstrate an error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his retirement from the service with full retirement benefits afforded to himself and his family members.  The Board does not correct records so as to afford an applicant entitlement to other Federal or State veterans' benefits.

4.  As the Board is not an investigative agency and the applicant has not provided sufficient evidence to show he did not receive payment for his accrued annual leave upon his medical retirement from the Regular Army in 1988, the Board makes a presumption of administrative regularity.  Therefore, it is presumed he was appropriately retired and received all Army pay entitlements due him upon his date of retirement.

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)                                         AR20100027139



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ABCMR Record of Proceedings (cont)                                         AR20100027139



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