MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           1 February 2001                  
	DOCKET NUMBER:   AR2000040740

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

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his retirement in 1985 in the rank and pay grade of Major, 0-4, be corrected to show that he was retired in the rank of lieutenant colonel, pay grade 0-5.   

The applicant states that the time in grade requirement for retirement is now two years, and he met this requirement.

The applicant states that he retired from the Army with 20 years of active federal service as a major, even though he had served two years and two months as a lieutenant colonel.  He states that he was drafted, went to officer candidate school, and served in Vietnam, where he was twice awarded the Bronze Star Medal for Valor.  He graduated from Command and General Staff College, and had a great assignment with the 7th Infantry Division at Fort Ord, California.  He had been an alternate selectee for battalion command. 

He could not, however, keep up because of his two P3 profiles for degenerative arthritis of the knees and hips and degenerative disc disease of the upper and lower spine.  It did not bother him at his previous staff job, but with the                7th Division assignment, try as he might, he was no longer fit to serve in a combat arms unit.  

The 7th Infantry Division recommended approval of his request to retire as a lieutenant colonel.  He states that his retirement, in effect, was not voluntary.  He could not stay.  The medical prognosis at that time was that his ailments were degenerative and would become worse.  He now has an 80 percent disability rating from the VA, and his condition is currently being reviewed for a 100 percent rating.

He was informed that he had to submit a ten month waiver in order to retire as a lieutenant colonel.  He states that the personnel sergeant should have informed him about medical retirement.  However, he submitted the waiver, sure that the special review board would see that he was physically unfit for duty, that the      7th Division had officially stated that there was no place for him, and that practically speaking, the retirement was voluntary in name only.  

Nonetheless, the Military Personnel Center, recommended disapproval of his waiver request, and his request was denied.  He then received advice from the division surgeon general’s office, learning that he qualified for a medical retirement as a lieutenant colonel, and that he should have requested one.

He requested that his retirement be placed on hold, but was informed that it was too late.  He retired on 28 February 1985.

The applicant provided reasons why he had waited so long to apply to this Board, stating that he did not really understand the personnel system, and when he retired, he did not feel so bad physically.  He was successful in his civilian job.  However, he now has difficulty in working.  He missed six months of work when he had his knees replaced, and will be out a long time when he has his hips replaced.  He is concerned about providing for his family.
  
PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was inducted into the Army on 4 February 1965 and was discharged on 28 March 1966 in order to accept a commission in the Army.  He was appointed a Reserve officer of artillery on 29 March 1966 and remained on continuous active duty until his retirement.

The applicant served in Vietnam with the 1st Cavalry Division in 1966 and 1967, and has served in various locations throughout the world since then.  He was appointed in the Regular Army on 19 April 1971.  

The applicant’s officer evaluation report ending in March 1984 shows that he had injured his knee, had an operation, and was currently rehabilitating.  The subsequent two reports immediately prior to his retirement reflect that he had a physical profile, the last report showing that his profile prevented full performance of his duties in the field.

On 15 November 1984 the applicant requested that he be relieved from active duty and placed on the retired list on 1 March 1985.  He requested retirement in the grade of lieutenant colonel.  The 7th Infantry Division commander recommended approval of his request, and stated that he was unable to meet the physical standards for duty with the division as physical records reflected that he had two P3 profiles.

Subsequent to his request for retirement, he requested a waiver of the three year time in grade requirement.  He stated that he was retiring because of his profiles, which prevented him from performing his duties.  He stated that any kind of physical training, running, or wearing a helmet was painful and jeopardized his health; and although he had a knee operation and extensive physical therapy, his condition had not improved, but had worsened.  He stated that since his condition was attributable to a significant degree to the physical demands of his 20 years in a combat arms specialty, it would be appropriate that he be allowed to retire in his current grade.  He stated that the only other option would be to find some kind of garrison/administrative position, retrain for it, and remain on active duty for 10 more months to function in that capacity.  He stated that was not appropriate nor in the Army’s best interests.  He stated that if provisions have been made for a waiver, he certainly deserved one.  He finished by saying that if his waiver was not approved, he be retired in the rank of major.

The applicant’s branch at the Military Personnel Center stated that the applicant was not eligible to retire in the grade of lieutenant colonel until                            31 December 1985.  It recommended approval of his retirement, provided he was retired in the grade of major.

On 20 December 1984 the Military Personnel Center informed the 7th Infantry Division commander that the applicant’s request to be retired in the grade of lieutenant colonel was disapproved.  

The applicant was retired on 28 February 1985 in the rank of major.  His          DD Form 214 shows that he had over 20 years of service, and had been awarded the Bronze Star Medal for Valor on two occasions; and had received two other awards of the Bronze Star Medal, two awards of the Meritorious Service Medal, and two awards of the Army Commendation Medal; among his other decorations.

Army Regulation 600-8-24, currently in effect, provides policy and procedures for officer transfers and discharges.  Paragraph 6-1 concerns the officer retirement program, and states in pertinent part, that a commissioned officer must serve on active duty 3 years in grade to retire in rank above major and below lieutenant general.  However, the President may waive this requirement in individual cases involving extreme hardship or exceptional or unusual circumstances. 

Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

That regulation also states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 28 February 1985, the date of his retirement.  The time for the applicant to file a request for correction of any error or injustice expired on 28 February 1988.

The application is dated 12 April 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___jea___  ___lls___  ___bjl___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000040740	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010201	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  307	142.00	
2.	136.00	
3.	108.00	
4.		
5.		
6.