RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 March 2006
      DOCKET NUMBER:  AR20050012758


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Robert D. Morig               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his request to change his
physical disability retirement of 6 January 1992 to a retirement by reason
of length of service.

2.  The applicant states he is not sure his retired pay should have stopped
in the first place since he had already been given a retirement date.  The
statement in paragraph 2 on page 5 of the Record of Proceedings, which
stated his disability pay was not taxable, means nothing because his
retired pay was not taxable anyway.  In regards to paragraph 3 on page 5
(that even if he requested retention there is no evidence his request would
have been granted), the applicant states the Board has no way of knowing
what could or would have happened

3.  The applicant states the Board stated "the only reason I applied was
because of the new law Well Duh!"  He does not understand how anyone can
say he was so disabled he could not pull 18 more days.  He was expected to
be able to understand the medical board process.  He finds this very unfair
and knows the Board has the power to right this.

4.  The applicant provides a certification of military service; a DD Form
214 (Certificate of Release or Discharge from Active Duty) for the period
ending        6 January 1992; orders removing him from the Temporary
Disability Retired List (TDRL); his application for voluntary retirement;
orders reassigning him to the transition point; orders releasing him from
active duty for the purpose of length of service retirement; a retiree
account statement; a TDRL evaluation letter and TDRL evaluation orders; his
TDRL evaluation; the applicant's agreement with the TDRL evaluation; and
his previous Board case.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2004106023 on 13 January 2005.

2.  The applicant provides new arguments which will be considered by the
Board.

3.  The applicant enlisted in the Regular Army on 25 February 1972.  On 1
April 1991, he applied for voluntary retirement to be effective 1 April
1992.  Orders were issued on 18 July 1991 releasing him from active duty
effective 31 March 1992 and placing him on the Retired List effective 1
April 1992.

4.  The applicant was initially referred to Psychiatry in July 1990 for an
evaluation of "spells."  He underwent neuropsychological testing on 26 May
1991 for panic symptoms and agoraphobic behavior.  On 27 August 1991, he
was found to be not qualified for retention and referred to a Medical
Evaluation Board (MEB).

5.  On 16 October 1991, an MEB referred the applicant to a Physical
Evaluation Board (PEB) for a diagnosis of severe panic disorder with severe
agoraphobia.  The MEB found the applicant to be mentally competent for pay
purposes and to have the capacity to understand the nature of and to
cooperate in the PEB proceedings.  On 17 October 1991, the applicant agreed
with the MEB's findings and recommendation.

6.  On 31 October 1991, an informal PEB found the applicant to be unfit for
duty due to his severe panic disorder but that the condition had not
stabilized to the point that a permanent degree of severity could be
determined for rating purposes.  The PEB recommended the applicant be
placed on the TDRL with a 50 percent disability rating.  On 14 November
1991, the applicant concurred with the findings and recommendation of the
PEB and waived his right to a formal hearing.  In accepting the findings
and recommendation of the informal PEB, he noted he had "received a full
explanation of the results of the findings and recommendations and legal
rights pertaining thereto."

7.  On 5 December 1991, the U. S. Army Physical Disability Agency approved
the findings of the informal PEB.  The applicant was released from active
duty on 6 January 1992 after completing 19 years, 10 months, and 9 days of
active Federal service and placed on the TDRL 7 January 1992.

8.  In March 1993, the applicant underwent a TDRL evaluation.  At that time
it was determined his severe panic disorder with severe agoraphobia had
stabilized to the point that a permanent rating could be established.  On
30 April 1993, an informal PEB recommended he be permanently retired with a
             50 percent disability rating.  The applicant concurred with
the findings and recommendation of the PEB and waived his right to a formal
hearing.  On 4 June 1993, he was removed from the TDRL and permanently
retired with a 50 percent disability rating the date following.

9.  The applicant provided a retiree account statement dated 1 December
2003 showing he had gross pay of $1,325.00 and a Department of Veterans
Affairs waiver of $2,239.00 and that he was exempted from taxes due to his
disability status.

10.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  Paragraph 3-6 states the time at which a Soldier
should be processed for disability retirement or separation must be decided
on an individual basis.  A Soldier may not be retained or separated solely
to increase retirement or separation benefits.  Paragraph 3-10 states a
Soldier may be continued on active duty (COAD) if the physical disability
is a basically stable condition and the Soldier is able to maintain himself
or herself in a military environment without jeopardizing his or her
individual health or the health of others.  A Soldier who is unfit because
of physical disability will not be COAD solely to increase benefits.  He or
she will not be COAD unless his or her retention is justified as being of
value to the Army.

11.  Title 10, U. S. Code, section 1202 provides that if a member would be
qualified for retirement for disability but for the fact that his
disability is not determined to be of a permanent nature and stable, the
Secretary shall, if he also determines that accepted medical principles
indicate the disability may be of a permanent nature, place the member's
name on the TDRL with retired pay computed under section 1401 of this
title.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  At the time, paragraph 12-30 provided
that, if a Soldier who had requested retirement became hospitalized or had
an identified medical problem, he or she might be referred to a PEB.  The
commander of the medical treatment facility, or a senior medical officer
who had detailed knowledge of medical fitness and unfitness standards,
disposition of patients, and disability separation processing to whom the
command had delegated such authority, would make that decision.

13.  The Fiscal Year 2004 National Defense Authorization Act provided for
phased-in restoration of the retired pay deducted from the accounts of
military retirees because of their receipt of VA compensation.  Concurrent
Retirement and Disability Payments (CRDP) applies to all retires with
Department of Veterans Affairs-rated, service-connected disability 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.  Title 26 (Internal Revenue Code), U. S. Code, section 61(a)(11)
states, except as otherwise provided in this subtitle, gross income means
all income from whatever source derived including pensions.  Section
104(a)(4) states gross income does not include amounts received as a
pension for personal injuries or sickness resulting from active service in
the armed forces of any country.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that he was not sure his retired pay should
have stopped in the first place since he had already been given a
retirement date.

2.  In accordance with Army Regulation 635-200, a Soldier who had requested
retirement might become hospitalized or have an identified medical problem
and he or she might be referred to a PEB.  Having an established retirement
date does not stop physical disability processing.  In accordance with Army
Regulation 635-40, a Soldier may not be retained or separated solely to
increase retirement or separation benefits.

3.  In addition, it appears the applicant's physical disability processing
began after he requested voluntary retirement but at least seven months
before he was due to retire for length of service.

4.  The applicant contended that his retired pay was not taxable, so the
fact his disability pay was not taxable meant nothing.  The applicant
appears to be taking this information from his retiree account statement,
which is a statement of his retired pay and tax status as it actually is.
The retired pay the retiree account statement refers to IS disability
retired pay.  The applicant did not reach 20 years of active Federal
service and therefore never qualified for regular retired pay.

5.  It appears the previous Record of Proceedings meant to convey the fact
that, if the applicant had been allowed to remain on active duty in order
to retire for length of service, as opposed to receiving a disability
retirement, his retired pay would have been taxable.

6.  The applicant contends that, in regards to paragraph 3 on page 5 (that
even if he requested retention there is no evidence his request would have
been granted), the Board has no way of knowing what could or would have
happened. The applicant's contention is true; nevertheless, it does not
negate the fact that the applicant DID NOT request retention.

7.  The applicant appears to acknowledge that he applied for correction of
his retirement date only because of the new law.  Regrettably, the passage
of a law 10 years after the applicant retired for physical disability a
little more than a month short of completing 20 years of active duty, with
his concurrence of the findings of an informal PEB, is insufficient reason
to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__js____  __ym____  __rdm___  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 to amend the decision of
the ABCMR set forth in Docket Number AR2004106023 dated 13 January 2005.




                                  ____John Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012758                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060321                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]