IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110008209 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to remove the entry that refers to his temporary retirement with 50-percent disability.

2.  The applicant states he cannot get a job with that high a disability rating.  He should have been reevaluated back in 1969 to have it corrected or he should have been paid for the 50-percent disability.  He also states he would be satisfied if the Board issued him a letter showing he never received disability pay from the Army.

3.  The applicant provides no additional evidence.

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 was inducted into the Army of the United States on 4 April 1968 and he held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from on or about 5 October 1968 to on or about 22 December 1968.

3.  On 23 December 1968, he was transferred from the 93rd Evacuation Hospital and admitted to the U.S. Army Hospital in Japan for a psychiatric impairment.  He underwent a medical as well as a psychiatric evaluation and he was diagnosed as having a schizophrenic reaction.  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.

4.  On 27 February 1969, an MEB convened at William Beaumont General Hospital, Fort Bliss, TX, 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 a schizophrenic reaction.  The MEB recommended his referral 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.

5.  On 28 February 1969, an informal PEB convened at Fort Sam Houston, TX, 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 future reexamination.  He concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

6.  On 24 March 1969, the Office of the Adjutant General, Headquarters, Department of the Army, directed the applicant's temporary disability retirement in the grade of private first class (PFC)/E-3 effective 8 April 1969 and cited paragraph 273 of Department of the Army Special Orders Number 56, dated 24 March 1969, as the authority for his retirement.

7.  On 8 April 1969, the applicant was honorably retired in the rank/grade of PFC/E-3.  The DD Form 214 he was issued shows he was retired in accordance with Title 10, U.S. Code, section 1202, with a 50-percent disability by reason of 

temporary physical disability.  This form shows he completed 1 year and 5 days of creditable active service.

8.  On 5 March 1971, the results of his TDRL medical examination revealed his disability had not reached a point of stability.  Therefore, he was ordered to be retained on the TDRL with future reexamination.

9.  On 31 May 1972, he underwent a TDRL medical reexamination at Letterman General Hospital, San Francisco, CA.  The examination revealed that he continued to suffer from a severe reactive depressive psychosis.  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 28 August 1972, a TDRL PEB convened in San Francisco and determined the applicant's reactive depressive psychosis 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 28 August 1972, 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 October 1972, the Office of the Adjutant General, Headquarters, Department of the Army, published Letter Orders Number D10-394 removing him from the TDRL effective 31 October 1972 and discharging him with entitlement to severance pay under Title 10, U.S. Code, section 1202.

12.  Title 10, U. S. Code, section 1202 provides that if a member would be qualified for retirement for disability but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title.

13.  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 evidence of record shows the applicant presented a medical condition and subsequently underwent an MEB which recommended his referral to 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 orders directing his temporary disability retirement.

2.  He was issued a DD Form 214 upon conclusion of his active service and transfer to the TDRL in April 1969.  This document captured his active service as well as his disposition (retirement by reason of temporary disability).  There is neither an error nor an injustice.  In addition, in the absence of evidence to the contrary it is presumed that he was drawing retired pay during the period he was on the TDRL at the 50-percent rate.

3.  A TDRL PEB later determined his medical condition continued to render him unfit and recommended his separation with entitlement to severance pay.  Accordingly, he was issued appropriate orders directing his removal from the TDRL and discharge with entitlement to severance pay.  However, that action does not make invalid his April 1969 retirement for temporary disability.

4.  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)                                         AR20110008209



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ABCMR Record of Proceedings (cont)                                         AR20110008209



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