IN THE CASE OF:	  

		BOARD DATE:	    31 July 2012

		DOCKET NUMBER:  AR20120001832 


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 reinstatement of his retirement pay retroactive to 1946 or as far back as possible with any consumer price index adjustments or increases earned.

2.  He states he declined his retirement pay after World War II and he has not received any payments since 1947.  He further states that at the time he did not want to be a burden to the country, but due to his advanced years he now needs the extra income.

3.  The applicant provides:

* Transcript of Retirement Board Proceedings
* WD AGO Form 8-118 (Disposition Board Proceedings)
* WD retirement pay award
* Department of Veterans Affairs (VA) letter
* WD AGO Form 53-98 (Military Record and Report of Separation Certificate of Service)
* durable power of attorney

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.  His military records show he entered active service in the Army of the United States as a commissioned officer in the rank of second lieutenant on 12 November 1942.

3.  A WD AGO Form 8-118 shows he was injured in action as a result of high explosive shell fragments in Dusseldorf, Germany, on 28 February 1945.  He was diagnosed with deformity of his right elbow.

4.  A Report of Retiring Board Proceedings, dated 11 October 1945, shows the results of his retiring board.

	a.  The board found he was permanently incapacitated for active service due to deformity of his right elbow as a result of an incident of commissioned service, i.e., wounds incurred in enemy action in Germany.

   b.  Prior to adjourning the board, the board president handed the applicant a letter setting forth his rights to file an application for a pension under War Department Circular 474, dated 18 December 1944.  The applicant acknowledged receipt of the letter.

5.  A WD AGO Form 53-98 shows he was discharged in the rank of first lieutenant on 2 January 1946 due to deformity of his right elbow which was incurred in the line of duty.

6.  A War Department Adjutant General's Office letter, dated 29 January 1946, states the applicant was being certified to the Administrator of the Veteran's Affairs under the Act of 3 April 1939 for retirement pay in the amount of $131.25 monthly effective 3 January 1946.

7.  He submits a VA letter, dated 23 January 1947, acknowledging receipt of his letter requesting stoppage of his officer's retirement pay.  The letter states his officer's retirement pay would be discontinued as of the date of the last payment.  The letter further states the retirement pay could be restored to him from the date the VA received a request to resume his officer's retirement pay.

8.  A letter from the applicant to the Army Retiring Board, Adjutant General, U.S. Army, dated 12 May 1948, subject:  Return of Retirement Monies Received, indicates he enclosed a check in the amount of $1,895.46.  The letter further indicates the money was a return of all retirement monies received less necessary medical bills.  The Department of the Army indorsed this correspondence to the VA stating it was a matter within the VA's jurisdiction.

9.  A DD Form 96 (Disposition Form), dated 22 August 1950, states the applicant's case was reviewed by the Army Physical Review Council under the provisions of section 411, Public Law 351, 81st Congress.  It states that at the time the applicant was last retired or granted retirement pay his percentage of disability (determined in accordance with the Schedule of Rating for Veterans Administration) was 10 percent.

10.  An AGO Form 0987 (Information for Processing Former Physically Disabled Members of the Army), dated 30 August 1950, states in the remarks section that the applicant did not qualify for disability retirement pay under Public Law 351.  The form indicated his amount of severance pay would be $2,109.04.

11.  A Department of the Army Office of the Adjutant General letter to the applicant, dated 18 September 1950, subject:  Election of Retirement Pay Benefits under Provisions of Public Law 351, states:

   a.  It had been determined that the applicant was 10-percent disabled at the time he was granted retirement pay and he had 4 years of active service credit computed under section 412, Public Law 351.  The applicant was therefore entitled to receive severance pay under section 403 of the Act in the total lump sum of $2,109.04.  His total rate of disability retirement pay under the old pay schedule was $157.50 and was wholly tax exempt.

	b.  The applicant could elect to receive severance pay in the amount indicated above or could continue to receive his retirement pay indicated above.  He would continue to receive disability retirement pay in the amount of $157.50 unless he elected (within the 5-year period beginning 1 October 1949) to receive severance pay in the amount shown above.

12.  Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, compensation for service-connected disabilities was under the jurisdiction of the VA.  This Act vested the administration of payment of disability retirement pay in the Secretary of the Army.



DISCUSSION AND CONCLUSIONS:

1.  On 11 October 1945, he was found permanently incapacitated for active service due to deformity of his right elbow as a result of wounds incurred in enemy action.  Because the Army at the time did not offer disability retirements, he was certified to the VA for retirement pay in the amount of $131.25 monthly effective 3 January 1946.  He then requested stoppage of his VA retirement pay.

2.  In August 1950, his case was reviewed by the Army Physical Review Council under the provisions of Public Law 351 wherein administration of payment of disability retirement pay was transferred from the VA to the Secretary of the Army.  The review determined his percentage of disability as 10 percent.  This percentage would have qualified him for severance pay, but not for retirement pay.

3.  An AGO Form 0987, dated 30 August 1950, stated in the remarks section that he did not qualify for disability retirement pay under Public Law 351 and indicated his amount of severance pay would be $2,109.04.

4.  A Department of the Army Office of the Adjutant General letter to the applicant, dated 18 September 1950, informed him he would continue to receive disability retirement pay in the amount of $157.50 unless he elected to receive severance pay in the total lump sum of $2,109.04.

5.  In the absence of evidence to the contrary, it is reasonable to presume he received the severance pay.  Because of his 10 percent disability rating he would not be entitled to retirement pay from the Army.  

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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 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)                                         AR20120001832



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ABCMR Record of Proceedings (cont)                                         AR20120001832



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