IN THE CASE OF:
BOARD DATE: 23 September 2014
DOCKET NUMBER: AR20140001045
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 20-year retirement.
2. He states after the U.S. Army Human Resources Command conducted an audit of his military records, it was determined that he was short of completing a 20-year retirement by 5 months. He maintains that at the time of his retirement, he was heavily medicated and going from hospital to hospital with no mental capabilities or time to complete the additional 5 months of service.
3. He provides extensive medical record documents and a DA Form 199 (Physical Evaluation Board (PEB) Proceedings).
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. After having prior service in the U.S. Army Reserve, on 7 March 1992, the applicant enlisted in the Regular Army.
3. On 2 February 2010, a PEB was convened and considered the applicant's condition of major depressive disorder. The PEB found his medical and physical impairment prevented reasonable performance of the duties required by his grade and military specialty. The board also found that his condition was not sufficiently stable for final adjudication and he was placed on the Temporary Disability Retirement List (TDRL) with a 100 percent (%) disability rating. On
4 February 2010, he concurred with the board findings and recommendations and waived a formal hearing of his case.
4. Orders 054-0001, dated 23 February 2010, show he received disability retirement based on 19 years, 2 months, and 17 days of active duty service, a total of 9 months and 13 days short of qualifying for a 20-year retirement.
5. On 13 May 2010, he was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24b(2) and placed on the TDRL. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in item 12 (Record of Service) the following:
* 12a (Date Entered Active Duty This Period) 7 March 1992
* 12b (Separation Date This Period) 13 May 2010
* 12c (Net Active Service This Period) 18 years, 2 months, and 7 days
* 12d (Total Prior Active Service) 1 year and 10 days
6. Army Regulation 635-40 states, in pertinent part, that 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 that they have attained optimum hospital improvement.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows a PEB was convened on 2 February 2010 that found the applicant's medical and physical impairment prevented reasonable performance of his duties. On 4 February 2010, he concurred with the board findings and recommendations and waived a formal hearing of his case.
He was subsequently placed on the TDRL on 13 May 2010 with a 100% disability rating.
2. It is true that the applicant was only about 9 (not 5) months award from retirement. However, the governing regulation states that Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement. That point came for the applicant prior to his reaching 20 years of service.
3. In view of the evidence in this case, there is no basis for granting his 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) AR20140001045
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