IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004554 


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 reconsideration of his request for a 20-year retirement.

2.  The applicant states he was medically retired with 19 years, 9 months, and
1 day of active service.  However, he has evidence that shows this calculation was incorrect.  He adds the error was due to administrative errors and his own mental disability.

   a.  He was mistakenly told by Army officials that the date he would complete 20 years of active service for retirement purposes was 5 August 1995; however, he would not have sufficient leave to retire with 20 years of active service due to medical reasons.  [The applicant retired from active duty on 6 May 1995.]  

   b.   He adds that his Basic Active Service Date (BASD) was 8 June 1975 and he did not have any breaks in service or time lost, so he would have completed 20 years of active service on 7 June 1995.  Had he known that, he would not have cashed in 34 days of accrued leave.  Instead, he would have requested
32 days of terminal leave, which would have given him 20 years of active service.

   c.  He states he was suffering from a very severe psychotic disorder at the time of his Physical Evaluation Board (PEB) processing and he was unable to fully understand his options.  However, he did express his desire for Continuation on Active Duty (COAD) to complete 20 years of active service.

       (1)  He was told by the PEB Liaison Officer (PEBLO) that his request for COAD was being processed.  In March 1995, his company commander informed him that he would be retired in early April 1995.  He attempted to prolong his time on active duty by requesting 20 days of Permissive Temporary Duty (PTDY) for the purpose of house hunting, from 17 April through 6 May 1995.

       (2)  He asserts that due to the error in his BASD and the fact that he was not properly informed of his options, he was denied the opportunity to complete 20 years of active service.

   d.  He requests that 32 days (of the 34 days) of leave he cashed in be converted to 32 days of terminal leave to allow him to retire with 20 years of active service.  He agrees to repayment of any difference in pay by deducting it from his retired pay.

   e.  He concludes by stating it has been an exhausting, painful, and difficult experience for him to try to remember the events from 1994-1995; a time when he was mentally unstable.  He respectfully requests correction of the injustice, which was caused by administrative error.

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a BASD verification document, Department of Veterans Affairs (VA) examination report, two PEB appeal documents, and a Leave and Earnings Statement (LES).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100010189, on 1 April 2010.

2.  The applicant had prior honorable active duty enlisted service in the Regular Army (RA) from 28 November 1972 through 29 July 1974.  He also had enlisted service in the U.S. Army Reserve (USAR) from 30 July 1974 through 18 May 1976.

3.  The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 19 May 1976.

4.  A DD Form 214 shows the applicant entered active duty on 12 June 1976, was honorably discharged on 11 June 1980, and transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  He completed 4 years of net active service this period and 1 year, 8 months, and
2 days of total prior active service.
5.  The applicant was ordered to active duty on 8 April 1981.

6.  A DA Form 3947 (Medical Evaluation Board [MEB] Proceedings), dated
26 September 1994, shows the applicant was diagnosed with a psychotic disorder medically unacceptable in accordance with Army Regulation (AR)
40-501 (Standards of Medical Fitness) and that the MEB recommended referral of the applicant to a PEB.  It also shows in:

   a.  item 15 the applicant indicated he desired COAD under the provisions (UP) of AR 635-40 (Physical Evaluation for Retention, Retirement or Separation);

   b.  item 16 that medical officials determined that COAD UP of AR 635-40 was medically contraindicated;

   c.  item 20 the findings and recommendation of the MEB were approved on 26 September 1994; and

   d.  item 24 the applicant agreed with the MEB's findings and recommendation and he placed his signature on the document on 28 September 1994.

7.  A DA Form 199 (PEB Proceedings), dated 7 November 1994, shows an informal PEB diagnosed the applicant with a psychotic disorder not otherwise specified.

   a.  The Disability Description section shows the PEB:

       (1) concluded the applicant's medical condition prevents satisfactory performance of duty in his grade and specialties;

       (2)  informed the applicant his disability was rated at 30% and he would actually be in receipt of 50% of his base pay per month until removed from Temporary Disability Retired List (TDRL) status; and

       (3)  noted the applicant requested COAD UP AR 635-40, chapter 6.

   b.  Item 9 shows the Board found the applicant physically unfit, recommended a combined rating of 30%, and placement on the TDRL.

   c.  Item 13 (Election of Member) shows the applicant did not concur with the PEB's findings and recommendations, but he waived a formal hearing.  He submitted a written appeal, dated 21 November 1994, and stated that he was eligible for a 20-year retirement in 9 months [August 1995].  He felt he could continue to be a valuable asset to the Army and requested COAD.  He also requested that his disability be rated at 50% and to be placed on the Permanent Disability Retired List (PDRL).

8.  A DA Form 18 (Revised PEB Proceedings), dated 19 January 1995, shows
the U.S. Army Physical Disability Agency (USAPDA) modified the PEB findings, rating, and disposition.

   a.  The Disability Description section shows the USAPDA:

       (1)  conducted a complete review of the applicant's case file and confirmed the fact he was unfit; however, it found that the more appropriate disposition was placement on the PDRL;

       (2)  determined that the applicant's medical condition was stable for rating purposes and not expected to change significantly in the near future; and
   
       (3)  noted the applicant requested COAD UP AR 635-40, chapter 6.

   b.  Item 9 shows the USAPDA found the applicant physically unfit, recommended a combined rating of 30%, and placement of the PDRL.

   c.  Item 13 (Election of Member) shows the applicant agreed with the USAPDA's modification and he placed his signature on the document on
3 February 1995.

9.  Headquarters, Walter Reed Army Medical Center, PEBLO, Washington, DC, memorandum, subject:   Request for change of date in retirement to include
20 days PTDY for [applicant], shows the PEBLO requested a change to the applicant's retirement date of 18 April 1995 to 6 May 1995 to allow for 20 days PTDY.

10.  U.S. Total Army Personnel Command, Alexandria, VA, Orders D57-2, dated
27 March 1995, show the Chief, Physical Disability, ordered the release of the applicant from assignment and active duty because of physical disability, effective 6 May 1995.  The orders also show:

   a.  the applicant was placed on the PDRL, effective 7 May 1995, in the retired rank of major/pay grade O-4 with a percentage of disability of 30%, and

   b.  he was authorized 20 days of PTDY, effective 17 April 1995.

11.  A DD Form 214 shows the applicant entered active duty on 8 April 1981 and he was honorably retired from active duty on 6 May 1995 based on permanent disability.  He completed 14 years and 29 days of net active service this period;
5 years, 8 months, and 2 days of total prior active service; and 10 months and
25 days of total prior inactive service.

12.  In support of his request, the applicant provides the following documents.

   a.  A DA Form 4188 (Military Personnel Office/Finance Office Verification of MPRJ [Military Personnel Records Jacket] and PFR [Personal Finance Record]). The applicant's BASD in the "MILPO [Military Personnel Office] Verification" column is shown as 8 June 1975; however, the "FAO [Finance and Accounting Office] Data" column is blank.

   b.  A VA Compensation and Pension Exam Report, dated 23 October 1997, and allied documents (a total of 10 pages) that show, in pertinent part, the examining medical doctor wrote, "I previously saw [the applicant] on 19 July 1995, at which time I thought he was suffering from a psychotic disorder, not other specified, which was very severe."  He concluded by stating, "…and his condition today is no different than it was when I saw him in [July 1995]."

   c.  A DFAS Form 702 (LES) for the period 1-30 April 1995 that shows the applicant had a leave balance of 34 days.

   d.  A DA Form 4187 (Personnel Action), dated 6 April 1995, that shows the applicant's request for 20 days PTDY, from 17 April through 6 May 1995, was approved.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Chapter 6 (Continuation on Active Duty and Continuation on Active Reserve Status of Unfit Soldiers), paragraph 6-2, provides that the primary objective of this program is to conserve manpower by effective use of needed skills or experience.  A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for a 20-year retirement should be reconsidered because he has new evidence that his BASD was incorrectly calculated at the time of his separation processing.  As a result, he was denied COAD that would have allowed him to complete 20 years of active service.

2.  Records show the applicant requested COAD during both his MEB and PEB proceedings, his requests for COAD were considered, he was found medically unfit, and medical officials determined his COAD was medically contraindicated UP of AR 635-40.  Accordingly, the applicant was denied COAD.  There is no evidence of record, and the applicant provides insufficient evidence, to show that he was improperly denied COAD.

3.  Records show the applicant concurred with the USAPDA's modification of the PEB findings and recommendation on 3 February 1995.  Shortly thereafter, he was granted 20 days of PTDY for the purpose of house hunting and the date of his retirement was extended from 18 April 1995 to 6 May 1995.  

4.  The applicant's contention that he was mistakenly told by Army officials that he would complete 20 years of active service for retirement purposes on
5 August 1995 was carefully considered.

   a.  In support of his contention, he provides a DA Form 4188 that shows the MILPO indicated his BASD was 8 June 1975.

   b.  However, this document also shows the FAO did not confirm that 8 June 1975 was his correct BASD.  In fact, the FAO entry for his BASD was left blank.

5.  A calculation of the applicant's periods of active duty (AD) service shows:

1974  07  29  REFRAD
   - 1972  11  28  Date of Enlistment in RA
   =    01  08  01
   +                  1  day inclusive
   =    01  08  02  Prior AD Enlisted Service


1980  06  11  REFRAD
   - 1976  06  12  Date Entered AD - Commissioned Officer (CO) Service
   =    03  11  29
   +                  1  day inclusive
   =    04  00  00  Prior AD CO Service


1995  05  06  Date Retired from AD
   - 1981  04  08  Date Ordered to AD
   =    14  00  28
   +                  1  day inclusive
   =    14  00  29  Last Period of AD CO Service
6.  The sum of the applicant's periods of prior AD service shows:

       01  08  02  AD Enlisted Service
         + 04  00  00  Prior AD CO Service
     =  05  08  02  Total Prior AD Service

7.  A calculation to determine the applicant's adjusted BASD upon being ordered to active duty on 8 April 1981 shows:

1981  04  08   Date Ordered to AD
      -  0005  08  02  Total Prior AD Service
  =  1975  08  06	 Adjusted BASD  (i.e., 6 August 1975)

8.  The sum of the applicant's periods of active duty service shows:

       01  08  02  Prior AD Enlisted Service
       04  00  00  Prior AD CO Service
   + 14   00  29  Last Period of AD CO Service
     =  19  08  31  (that converts to)
    19  09  01 Total Active Duty Service

9.  The evidence of record confirms the applicant's adjusted BASD was 6 August 1975 and that he completed 19 years, 9 months, and 1 day of total AD service.

   a.  The entry for the applicant's adjusted BASD made by the MILPO on the DA Form 4188 in July 1983 was incorrect.  This may explain why the entry was not confirmed by the FAO at that time.  In any event, this error was made on a document more than 11 years prior to his separation processing.

   b.  More significant is that the applicant acknowledges in his application to this Board that, at the time of his separation processing, he was told by Army officials he would complete 20 years of active service on 5 August 1995.  Thus, the applicant, in effect, was informed of his correct adjusted BASD (i.e., 6 August 1975).  Therefore, it is concluded that Army officials did not deny the applicant's COAD based on erroneous information or due to a miscalculation of his BASD.

   c.  In addition, converting 32 or even 34 days of the applicant's "cashed-in" leave to terminal leave still would not provide him with 20 years of total active duty service.  For example:

       19  09  01  Total AD Service
   +  00  01  04  Creditable Leave Balance / Terminal Leave (34 days)
     =  19  10  05  Possible Total AD Service
10.  Therefore, in view of all of the foregoing, there is no basis for granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20100010189, dated 1 April 2010.




      _______ _   _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)                                         AR20110004554



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ABCMR Record of Proceedings (cont)                                         AR20110004554



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