IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120003172 


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:

* an additional 13 months of active duty service credit to make him eligible for a 20-year retirement
* a personal appearance hearing

2.  The applicant states:

* he desires an expedited review of his case due to his health and financial hardship
* he was not aware of his board options until he was given a medical retirement
* he thought his retirement included full benefits
* he was not offered the options which would have allowed him to remain in the service for 13 months
* he did not receive counseling from the brigade sergeant major or anyone – he was not offered a medical hold
* he received word regarding his "board" when he was between surgeries preparing for a corrective nerve procedure
* he has made many attempts to have his medical retirement changed
* he depends on his wife to take care of him and this often causes her to lose pay for time taken off from her job



3.  The applicant provides:

* two support letters, dated 1 October 1999 and 7 February 2012
* Congressional correspondence
* Privacy Act Release Form
* Department of Veterans Affairs (VA) letter, dated 29 August 2001
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 2 July 1999
* memorandum from the MEB approval authority, dated 6 July 1999
* MEB Addendum, dated 3 June 1999
* MEB Addendum, dated 18 January 1999
* MEB Addendum, dated 19 October 1999
* Medical Examination Report, dated 28 August 1998
* Medical Examination Report, dated 23 June 1998
* pulmonary diagnostic laboratory test results, dated 24 June 1998
* 10 pages of medical record extracts
* DA Form 3349 (Physical Profile), dated 6 July 1999
* letter from the Deputy Commander, U.S. Army Physical Disability Agency, Washington, DC, dated 12 January 2011
* self-authored statements, dated 12 April 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 on 10 February 1981.  He completed training and was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was sergeant first class/E-7.

3.  A medical records extract, dated 23 June 1998, shows the applicant was seen at Madigan Army Medical Center for wheezing.  He was administered medication and scheduled for reactive airway disease testing.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 July 1998, shows the applicant was struck from behind by another vehicle while stopped at a light while in a leave status.  The applicant suffered minor cervical neck and lumbar strains.  He underwent multiple anterior lumbar surgeries.

5.  On 2 July 1999, an MEB determined the applicant suffered from the following conditions and recommended his referral to a physical evaluation board (PEB):

* continued severe mechanical back pain with bilateral leg pain
* reflex sympathetic dystrophy in his left leg
* reactive airway disease

6.  On 6 July 1999, the applicant's MEB approval authority concurred with the MEB's recommendation to refer the applicant to a PEB and issued him a permanent "L4" physical profile.  His assignment limitations were as follows:

* no fitness testing
* no backpack
* no helmet
* no rifle
* no marching
* no lifting greater than 25 pounds

7.  The applicant's DA Form 199 (PEB Proceedings) is not available for review.

8.  Orders 244-0005, Headquarters, I Corps and Fort Lewis Military Personnel Division, Fort Lewis, WA, dated 1 September 1999, show the applicant was retired due to permanent disability and placed on the Retired List on 7 October 1999.  He completed 18 years, 7 months, and 27 days of creditable active military service.

9.  A letter from the VA's Compensation and Pension Board, dated 29 August 2001, shows the applicant was unable to work in any capacity due to pain and that his low back pain and lower extremity nerve damage was permanent and irreversible.

10.  A letter from the Deputy Commander, U.S. Army Physical Disability Agency, to the applicant's U.S. Senator, dated 12 January 2011, states:

	a.  In August 1999, an informal PEB determined the applicant was unfit for continued military service and recommended that he receive a permanent disability retirement with a rating of 60 percent.

	b.  A review of his pay records indicated he elected to receive his disability compensation from the VA and waived his U.S. Army disability retirement compensation.

	c.  Soldier's are not authorized to receive both VA compensation and disability retired pay.

	d.  The applicant would not be receiving any compensation from the U.S. Army; however, he was entitled to retirement benefits that all retired service members receive, to include TRICARE coverage, identification and privilege cards, and access to Army and Air Force Exchange facilities.

11.  The applicant provides self-authored statements indicating he was advised by his neurosurgeon and battalion command sergeant major to accept the medical retirement.  He also provides medical record extracts, Congressional correspondence, and two letters of support which attest to his character and duty performance.

12.  Army Regulation 635-40 establishes the Army physical disability evaluation system (PDES) 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 or her office, grade, rank, or rating.  It 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 they have attained maximum hospital improvement.

13.  The Fiscal Year 2004 National Defense Authorization Act provided for phased-in restoration of retired pay deducted from the accounts of military retirees because of their receipt of VA compensation.  Concurrent Retirement and Disability Pay (CRDP) applies to all retirees with a VA-rated service-connected disability rating of 50 percent or higher, but does not apply to disability retirees with less than 20 years of service.  The phased-in restoration began 1 January 2004.

14.  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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR.  The ABCMR Director may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his physical disability retirement be changed to retirement for length of service and a personal appearance before the Board to present his case.  His requests were carefully considered.

2.  Regarding a personal appearance, Army Regulation 15-185 states applicants do not have a right to a formal hearing before the ABCMR; the decision to grant a formal hearing resides with the ABCMR Director whenever justice requires.  In this case, sufficient records exist to make a fair and impartial consideration of the applicant's request without a formal hearing.

3.  The applicant's DA Form 199 is unavailable; however, records show he was issued a permanent "L4" physical profile for severe mechanical back pain with bilateral leg pain.  Given the severity of his condition, he was determined to be unfit to perform his duties for the additional time required to qualify for retirement for length of service.

4.  The applicant did not provide a copy of his election; however, he admits that under the advisement of his neurosurgeon and battalion command sergeant major he elected to medically retire.  Further, records and orders confirm he elected disability retirement rather than proceed through the formal PEB process.  It is very unlikely that processing through the formal PEB process would have taken more than an extra month.  The applicant failed to produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the decision of his medical retirement.

5.  It appears the applicant wants to receive CRDP.  Under CRDP, qualified disabled military retirees receive both their full military retirement pay and their VA disability compensation.  This recently-passed law phases out (over 9 years) the VA disability offset, which means that military retirees with 20 or more years of service and a 50-percent (or higher) VA-rated disability will no longer have their military retirement pay reduced by the amount of their VA disability compensation.  Unfortunately, he was found unfit by an informal PEB and he retired by reason of physical disability 13 months short of completing his 20th year of service.  He does not qualify for CRDP and there is no basis for voiding his disability retirement for a length of service retirement.

6.  In view of the above, 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 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)                                         AR20120003172



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003172



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1