BOARD DATE:	 31 May 2012 

		DOCKET NUMBER:  AR20110023919 


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 a permanent disability retirement.

2.  The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates retirement.  He never received any retired pay from the Army.  He has always received compensation from the Department of Veterans Affairs (VA).  Item 23 (Type of Separation) and Item 28 (Narrative Reason for Separation) of his DD Form 214 need to be changed.

3.  The applicant provides his DD Form 214 for the period ending 7 August 1981.

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 enlisted in the Regular Army in pay grade E-1 on 13 March 1980 for a period of 3 years.  He completed training and he was awarded military occupational specialty (MOS) 82C (field artillery surveyor).

3.  On 13 May 1981, he was given a temporary physical profile with a PULHES profile of 4T.1.1.1.1.1 for diabetes mellitus, insulin dependent, pending a medical board.

4.  On 8 June 1981, an informal Physical Evaluation Board (PEB) convened and considered the applicant's condition of mild diabetes.  The PEB determined the applicant was unfit for military duty in his rank and MOS by virtue of his condition. The PEB concluded that his condition was best described as moderately severe and recommended placement on the Temporary Disability Retired List (TDRL), rated at 40 percent (%), and reevaluation in December 1982 since permanent disability could not now be determined.

5.  On 7 August 1981, he was retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(2), by reason of temporary physical disability and he was placed on the TDRL.  He completed 1 year, 2 months, and 25 days of creditable active service.

6.  Item 23 of his DD Form 214 shows the entry "Retirement."  Item 28 of this form shows the entry "Physical disability, temporary."

7.  His TDRL examination and subsequent TDRL PEB are not available for review with this case.  However, his official record contains a Memorandum for Record, subject:  Formal Hearing, dated 11 February 1983, and signed by Captain Gxxx Dxxxxx, Judge Advocate General’s Corps, Legal Counsel, that states 

In telephone conversation with [Applicant, Social Security Number], TDRL, this date, he informed me that he now concurred with the informal PEB findings dated 25 January 1983 (20% and separation with severance pay).  He also withdrew his previous request for a formal hearing.

8.  Orders Number D44-3, issued by the U.S. Army Physical Disability Agency (USAPDA), dated 4 March 1983, removed the applicant from the TDRL effective 31 March 1983 with a 20% disability rating and entitlement to severance pay.

9.  Title 10, U.S. Code, section 1202, states that upon determination by the Secretary concerned a member would be qualified for retirement under section 

1202 (found unfit to perform the duties of their office and grade due to physical disability incurred while entitled to basic pay) but for the fact his/her disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines accepted medical principles indicate the disability may be of a permanent nature, place the member’s name on the TDRL with retired pay.

10.  Army Regulation 635-40 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 specifies PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 8 June 1981 an informal PEB found the applicant medically unfit for retention with a recommended 40% rating and placement on the TDRL with reexamination in December 1982.  Accordingly, he was honorably retired and placed on the TDRL on 8 August 1981.

2.  On 25 January 1983, a TDRL PEB found him unfit and recommended his separation for disability, rated at 20%, with entitlement to severance pay.  The 
official record contains a memorandum for record that confirms he concurred with the findings and recommendation of the PEB and withdrew his request for a formal hearing.  Accordingly, on 4 March 1983, the USAPDA issued orders removing him from the TDRL effective 31 March 1983.

3.  The applicant was a medical retiree from 8 August 1981 (the date he was placed on the TDRL) to 31 March 1983 (the date of his removal from the TDRL). He was also discharged for medical disability on 31 March 1983 with entitlement to severance pay.  There is neither an error nor an injustice as his disability processing appears to have been conducted in accordance with laws and regulations in effect at the time. 

4.  His contentions have been carefully considered; however, he has failed to show through the evidence submitted and the evidence of record that he should have received a higher disability rating and retirement due to permanent physical disability.  There is also no evidence of an error or injustice in his physical evaluation process for his medical condition, in the PEB's findings, or the disposition of his case.  There is also no evidence he was precluded from offering any relevant material evidence in his case.

5.  In the absence of evidence to the contrary, he was properly and equitably retired in 1981 and discharged in 1983 in accordance with the appropriate regulations.  It appears that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He concurred with the January 1983 PEB findings and recommendation.  Therefore, there is no basis for granting his request.

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)                                         AR20110023919



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ABCMR Record of Proceedings (cont)                                         AR20110023919



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