IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120004351 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired instead of "Physical Disability with Severance Pay." 

2.  The applicant states, in effect, that he appeared before a formal Physical Evaluation Board (PEB) and he was told he was being medically retired.  Prior to his discharge he signed a blank DD Form 214.  He received a completed copy of the form in the mail with the narrative reason for separation listed as physical disability with severance pay. 

3.  The applicant provides his DD Form 214.

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 6 September 1977.  He successfully completed and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  The applicant was later awarded MOS 94B (Food Service Specialist).

3.  A medical evaluation board (MEB) narrative summary (NARSUM) indicates the applicant was evaluated on 15 November 1989 and diagnosed with chronic low back pain syndrome and chronic pain of the left knee medial aspect. 

4.  On 16 November 1989, an MEB diagnosed the applicant with chronic low back pain syndrome and chronic pain of the left knee medial aspect  Both conditions were determined to have been incurred while the applicant was entitled to pay, did not exist prior to service, and were permanently aggravated by service.  The board recommended the applicant be referred to a PEB.

5.  On 27 December 1989, the findings and recommendation of the board were approved.  On 4 January 1990, the applicant concurred with the findings and recommendation. 

6.  On 16 January 1990, a PEB convened and based on a detailed review and consideration of all the evidence of record in his case file, the board found the applicant fit for duty.

7.  On 23 January 1990, the applicant non-concurred with the PEB's findings and recommendations and he requested a formal PEB.

8.  On 21 February 1990, a formal PEB found the applicant unfit based on "chronic low back pain, no objective findings, rated as characteristic pain on motion."  It was determined that his physical impairments made him medically unfit to perform the normal duties required of his rank and grade.   The formal PEB rated the applicant's condition as 10 percent disabling and recommended separation with severance pay.  The disability description also explained that "Ratings of less than 30 percent for Soldiers with less than 20 years retirement service require separation with severance pay in lieu of retirement."  He was furnished a copy of the findings and recommendation of the proceedings.

9.  On 21 February 1990, the applicant concurred with the formal PEB recommendation.

10.  There is no evidence in the applicant's available military service record that shows the PEB recommended the applicant be medically retired.


11.  On 29 March 1990, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with severance pay.  Item 18 (Remarks) of his DD Form 214 shows he received $36,417.60 in disability severance pay. 

12.  In a letter, dated 21 December 2011, the Deputy Director, Operations, Defense Finance and Accounting Service (DFAS), responded to a Congressional inquiry concerning the applicant's request for eligibility for military retired pay.  The Deputy Director stated their records did not reflect receipt of retirement orders for the applicant.  

13.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for correction of his records to show he was medically retired instead of discharge due to physical disability with severance pay was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The evidence of record shows that on 21 February 1990 a formal PEB convened and found the applicant unfit for duty and recommended a 10 percent disability rating for the condition of chronic low back pain.  The PEB recommended that he be separated from the service with entitlement to disability severance pay.  He concurred with that recommendation.

3.  There is no evidence and he has not provided any evidence to substantiate his claim that the PEB recommended he be medically retired.

4.  Based on 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 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)                                         AR20120004351





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ABCMR Record of Proceedings (cont)                                         AR20120004351



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